PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Industry Research and Development Act 1986.
SECTION 2
2
COMMENCEMENT
This Act shall come into operation on 1 July 1986.
SECTION 3
3
OBJECT OF ACT
The object of this Act is to position Australia as a leading innovation nation by:
(a)
facilitating the provision of independent strategic advice about investment in industry, innovation, science and research; and
(b)
supporting and encouraging collaboration in the development and delivery of programs relating to industry, innovation, science and research; and
(c)
authorising spending on programs relating to industry, innovation, science and research; and
(d)
promoting the development, and improving the efficiency and international competitiveness, of Australian industry by encouraging R&D activities, innovation and science activities and venture capital activities.
History
S 3 substituted by No 63 of 2016, s 3 and Sch 1 item 2, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 3 formerly read:
SECTION 3 OBJECT OF ACT
3
The object of this Act is to promote the development, and improve the efficiency and international competitiveness, of Australian industry by encouraging R&D activities, innovation activities and venture capital activities.
S 3 amended by No 93 of 2011, s 3 and Sch 2 item 2, by substituting "R&D activities" for "research and development activities", effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
S 3 amended by No 164 of 2007, s 3 and Sch 12 item 1, by substituting ", innovation activities and venture capital activities" for "and innovation activities", effective 27 September 2007.
S 3 amended by No 15 of 2004, s 3 and Sch 1 item 1, by inserting "and innovation activities" at the end, effective 11 September 2004.
S 3 amended by No 59 of 1988.
SECTION 4
INTERPRETATION
4(1)
In this Act, unless the contrary intention appears:
accountable authority
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
History
Definition of "accountable authority" inserted by No 63 of 2016, s 3 and Sch 1 item 3, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
acting chairperson
(Repealed by No 164 of 2007)
History
Definition of "acting chairperson" repealed by No 164 of 2007, s 3 and Sch 12 item 2, effective 27 September 2007. The definition formerly read:
acting Chairperson
means a person acting as Chairperson under section 17.
acting member
(Repealed by No 164 of 2007)
History
Definition of "acting member" repealed by No 164 of 2007, s 3 and Sch 12 item 3, effective 27 September 2007. The definition formerly read:
acting member
means a person acting as a member under section 17, and includes an acting Chairperson.
agreement under this Act
(Repealed by No 15 of 2004)
History
Definition of "agreement under this Act" repealed by No 15 of 2004, s 3 and Sch 1 item 2, effective 11 September 2004. The definition formerly read:
agreement under this Act
means:
(a)
a discretionary grant agreement; or
(b)
a generic technology grant agreement; or
(c)
a national interest agreement; or
(d)
a national procurement development program agreement; or
(e)
an agreement entered into by the Board in connection with the performance of any function of the Board specified in directions given to the Board under subsection 19(1).
application
(Repealed by No 15 of 2004)
History
Definition of "application" repealed by No 15 of 2004, s 3 and Sch 1 item 3, effective 11 September 2004. The definition formerly read:
application
means:
(a)
an application for a discretionary grant; or
(b)
an application for a generic technology grant; or
(c)
an application for a national interest agreement; or
(d)
an application for a national procurement development program agreement; or
(e)
an application made to the Board in connection with the performance of any function of the Board specified in directions given to the Board under subsection 19(1).
appointed member
means the Chairperson, the Deputy Chairperson or a member referred to in paragraph 9(1)(c).
History
Definition of "appointed member" amended by No 63 of 2016, s 3 and Sch 1 item 4, by inserting ", the Deputy Chairperson", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
approved form
has the meaning given by section 32.
History
Definition of "approved form" inserted by No 93 of 2011, s 3 and Sch 2 item 3, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
approved research institute
(Repealed by No 93 of 2011)
History
Definition of "approved research institute" repealed by No 93 of 2011, s 3 and Sch 2 item 4, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. The definition formerly read:
approved research institute
means an approved research institute within the meaning of section 73A of the Income Tax Assessment Act 1936.
Australia
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "Australia" inserted by No 33 of 2016, s 3 and Sch 5 item 69, effective 1 July 2016.
Australian government body
(Repealed by No 15 of 2004)
History
Definition of "Australian government body" repealed by No 15 of 2004, s 3 and Sch 1 item 4, effective 11 September 2004. The definition formerly read:
Australian government body
means:
(a)
the Commonwealth, a State or a Territory; or
(b)
an authority of the Commonwealth, of a State or of a Territory; or
(c)
an incorporated company in which an entity covered by paragraph (a) or (b) has a controlling interest.
Australian government contractor
(Repealed by No 15 of 2004)
History
Definition of "Australian government contractor" repealed by No 15 of 2004, s 3 and Sch 1 item 5, effective 11 September 2004. The definition formerly read:
Australian government contractor
means a person who performs services, otherwise than as an employee, under contract for one or more Australian government bodies.
Board
means Industry Innovation and Science Australia, established by section 6.
History
Definition of "Board" amended by No 101 of 2021, s 3 and Sch 1 item 1, by substituting "Industry Innovation and Science Australia" for "Innovation and Science Australia", effective 11 September 2021.
Definition of "Board" amended by No 63 of 2016, s 3 and Sch 1 item 5, by substituting "Innovation and Science Australia" for "Innovation Australia", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
Definition of "Board" substituted by No 164 of 2007, s 3 and Sch 12 item 4, effective 27 September 2007. The definition formerly read:
Board
means the Industry Research and Development Board established by this Act.
chairperson
means the Chairperson of the Board.
History
Definition of "chairperson" amended by No 164 of 2007, s 3 and Sch 12 item 5, by omitting ", but does not include an acting Chairperson" after "means the Chairperson of the Board", effective 27 September 2007.
Commissioner
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "Commissioner" inserted by No 93 of 2011, s 3 and Sch 2 item 5, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
committee
means a committee appointed under section 22.
company
(Repealed by No 93 of 2011)
History
Definition of "company" repealed by No 93 of 2011, s 3 and Sch 2 item 6, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. The definition formerly read:
company
means:
(a)
a body of persons; or
(b)
an association of persons;
whether corporate or unincorporate.
consolidated group
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "consolidated group" inserted by No 93 of 2011, s 3 and Sch 2 item 7, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
constitutional corporation
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "constitutional corporation" inserted by No 93 of 2011, s 3 and Sch 2 item 8, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
core R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "core R&D activities" inserted by No 93 of 2011, s 3 and Sch 2 item 9, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
core technology
has the meaning given by subsection 28E(2).
History
Definition of "core technology" inserted by No 93 of 2011, s 3 and Sch 2 item 10, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
corporate researcher
(Repealed by No 15 of 2004)
History
Definition of "corporate researcher" repealed by No 15 of 2004, s 3 and Sch 1 item 6, effective 11 September 2004. The definition formerly read:
corporate researcher
means a researcher other than an individual natural person.
decision-making principles
has the meaning given by section 32A.
History
Definition of "decision-making principles" inserted by No 93 of 2011, s 3 and Sch 2 item 11, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Deputy Chairperson
means the Deputy Chairperson of the Board.
History
Definition of "Deputy Chairperson" inserted by No 63 of 2016, s 3 and Sch 1 item 6, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
designated activity
(Repealed by No 15 of 2004)
History
Definition of "designated activity" repealed by No 15 of 2004, s 3 and Sch 1 item 7, effective 11 September 2004. The definition formerly read:
designated activity
means:
(a)
the manufacture of goods; or
(b)
the performance of services; or
(c)
mining operations or operations for the recovery of naturally occurring petroleum or of natural gas; or
(d)
construction operations relating to buildings or works; or
(e)
the production of software for computers or for similar equipment; or
(f)
an activity in respect of which a declaration under section 34B is in force; or
(g)
the development of systems and processes in relation to an activity referred to in paragraph (a), (b), (c), (d), (e) or (f).
discretionary grant
(Repealed by No 15 of 2004)
History
Definition of "discretionary grant" repealed by No 15 of 2004, s 3 and Sch 1 item 8, effective 11 September 2004. The definition formerly read:
discretionary grant
means a grant of financial assistance under a discretionary grant agreement.
discretionary grant agreement
(Repealed by No 15 of 2004)
History
Definition of "discretionary grant agreement" repealed by No 15 of 2004, s 3 and Sch 1 item 9, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
discretionary grant agreement
means an agreement entered into by the Board under section 28.
eligible activity
(Repealed by No 15 of 2004)
History
Definition of "eligible activity" repealed by No 15 of 2004, s 3 and Sch 1 item 10, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
eligible activity
means:
(a)
the manufacture of goods;
(b)
mining operations or operations for the recovery of naturally occurring petroleum or of natural gas;
(c)
construction operations relating to buildings or works;
(d)
the production of software for computers or for similar equipment;
(e)
an activity in respect of which a declaration under section 26 is in force; or
(f)
the development of systems and processes in relation to an activity referred to in paragraph (a), (b), (c), (d) or (e).
eligible company
(Repealed by No 15 of 2004)
History
Definition of "eligible company" repealed by No 15 of 2004, s 3 and Sch 1 item 11, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
eligible company
means a company:
(a)
that carries on an eligible activity in Australia; or
(b)
in respect of which a declaration under section 27 is in force.
entity
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "entity" inserted by No 93 of 2011, s 3 and Sch 2 item 12, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
finance scheme guidelines
(Repealed by No 93 of 2011)
History
Definition of "finance scheme guidelines" repealed by No 93 of 2011, s 3 and Sch 2 item 13, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. The definition formerly read:
finance scheme guidelines
means guidelines made under section 39EA.
generic technology grant
(Repealed by No 15 of 2004)
History
Definition of "generic technology grant" repealed by No 15 of 2004, s 3 and Sch 1 item 12, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
generic technology grant
means a grant of financial assistance under a generic technology agreement.
generic technology grant agreement
(Repealed by No 15 of 2004)
History
Definition of "generic technology grant agreement" repealed by No 15 of 2004, s 3 and Sch 1 item 13, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
generic technology grant agreement
means an agreement entered into by the Board under section 31.
head company
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "head company" inserted by No 93 of 2011, s 3 and Sch 2 item 14, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
income year
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "income year" inserted by No 93 of 2011, s 3 and Sch 2 item 15, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
internal review decision
has the meaning given by section 30D.
History
Definition of "internal review decision" inserted by No 93 of 2011, s 3 and Sch 2 item 16, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
MEC group
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "MEC group" inserted by No 93 of 2011, s 3 and Sch 2 item 17, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
member
means the Chairperson, the Deputy Chairperson or another member of the Board.
History
Definition of "member" amended by No 63 of 2016, s 3 and Sch 1 item 7, by inserting ", the Deputy Chairperson", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
Definition of "member" amended by No 164 of 2007, s 3 and Sch 12 item 6, by omitting ", but does not include an acting member" after "another member of the Board", effective 27 September 2007.
national interest agreement
(Repealed by No 15 of 2004)
History
Definition of "national interest agreement" repealed by No 15 of 2004, s 3 and Sch 1 item 14, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
national interest agreement
means an agreement entered into by the Board under section 33.
national procurement development program agreement
(Repealed by No 15 of 2004)
History
Definition of "national procurement development program agreement" repealed by No 15 of 2004, s 3 and Sch 1 item 15, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
national procurement development program agreement
means an agreement entered into by the Board under section 34A.
non-corporate Commonwealth entity
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
History
Definition of "non-corporate Commonwealth entity" inserted by No 63 of 2016, s 3 and Sch 1 item 8, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
official
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
History
Definition of "official" inserted by No 63 of 2016, s 3 and Sch 1 item 8, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
PDF
has the same meaning as in the Pooled Development Funds Act 1992.
History
Definition of "PDF" inserted by No 164 of 2007, s 3 and Sch 12 item 7, effective 27 September 2007.
R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "R&D activities" inserted by No 93 of 2011, s 3 and Sch 2 item 18, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
R&D entity
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "R&D entity" inserted by No 93 of 2011, s 3 and Sch 2 item 19, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
research and development activities
(Repealed by No 93 of 2011)
History
Definition of "research and development activities" repealed by No 93 of 2011, s 3 and Sch 2 item 20, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. The definition formerly read:
research and development activities
means systematic investigation or experimentation activities:
(a)
that involve innovation, technology transfer into Australia or technical risk;
(b)
that are carried out in Australia; and
(c)
the object of which is new knowledge (with or without a specific practical application) or new or improved materials, products, devices, processes or services.
researcher
(Repealed by No 63 of 2016)
History
Definition of "researcher" repealed by No 63 of 2016, s 3 and Sch 1 item 9, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. The definition formerly read:
researcher
means an entity that the Board believes is capable of carrying out a project of R&D activities or innovation activities.
Definition of "researcher" substituted by No 93 of 2011, s 3 and Sch 2 item 21, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. The definition formerly read:
researcher
means a person who, or a body, an organisation, or an institution, that, in the opinion of the Board, is capable of carrying out a project of research and development activities or innovation activities and, without limiting the foregoing, includes a Department of State, a company and an approved research institute.
Definition of "researcher" amended by No 15 of 2004, s 3 and Sch 1 item 16, by inserting "or innovation activities", effective 11 September 2004. For transitional provisions, see note under Part III heading.
research field
means a research field specified in regulations made for the purposes of this definition.
History
Definition of "research field" inserted by No 93 of 2011, s 3 and Sch 2 item 22, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
research service provider
means an entity registered under section 29A.
History
Definition of "research service provider" inserted by No 93 of 2011, s 3 and Sch 2 item 23, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
reviewable decision
has the meaning given by section 30A.
History
Definition of "reviewable decision" inserted by No 93 of 2011, s 3 and Sch 2 item 24, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
significant scientific link
has the meaning given by subsection 28D(3).
History
Definition of "significant scientific link" inserted by No 93 of 2011, s 3 and Sch 2 item 25, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
subsidiary member
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "subsidiary member" inserted by No 93 of 2011, s 3 and Sch 2 item 26, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
subsidy
(Repealed by No 15 of 2004)
History
Definition of "subsidy" repealed by No 15 of 2004, s 3 and Sch 1 item 17, effective 11 September 2004. For transitional provisions, see note under Part III heading. The definition formerly read:
subsidy
means:
(a)
a discretionary grant; or
(b)
a generic technology grant; or
(c)
a payment by the Commonwealth under a national interest agreement; or
(d)
a payment by the Commonwealth under a national procurement development program agreement; or
(e)
a payment by way of grant or loan made by the Commonwealth pursuant to an authorisation by the Board in the performance of any function specified in directions given to the Board under subsection 19(1).
supporting R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "supporting R&D activities" inserted by No 93 of 2011, s 3 and Sch 2 item 27, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
technical assessment
(Repealed by No 63 of 2016)
History
Definition of "technical assessment" repealed by No 63 of 2016, s 3 and Sch 1 item 10, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. The definition formerly read:
technical assessment
means:
(a)
in relation to a proposal for research and development or a proposal for innovation in respect of which an application has been made for the expenditure of Commonwealth money under a program to which Ministerial directions under section 18A apply - an assessment of, and the provision of advice and recommendations concerning:
(i)
the eligibility of the proposal, and of the applicant, to participate in the program; and
(ii)
the technical merit of the proposal; and
(iii)
any other matter specified in the Ministerial directions; and
(b)
in relation to the progress of particular research and development or a particular innovation initiative in respect of which the expenditure of Commonwealth money has been approved under such a program - an assessment of, and the provision of advice and recommendations concerning:
(i)
the progress of that research and development or of that innovation initiative; and
(ii)
any other matter specified in the Ministerial directions.
Definition of "technical assessment" inserted by No 15 of 2004, s 3 and Sch 1 item 18, effective 11 September 2004. For transitional provisions, see note under Part III heading.
4(2)
(Repealed by No 93 of 2011)
History
S 4(2) repealed by No 93 of 2011, s 3 and Sch 2 item 28, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. S 4(2) formerly read:
4(2)
For the purposes of this Act:
(a)
an external Territory to which this Act extends; and
(b)
such areas of the sea or seabed adjacent to Australia or to an external Territory to which this Act extends as are prescribed;
shall be taken to be part of Australia.
4(3)
(Repealed by No 15 of 2004)
History
S 4(3) repealed by No 15 of 2004, s 3 and Sch 1 item 19, effective 11 September 2004. For transitional provisions, see note under Part III heading. S 4(3) formerly read:
4(3)
A reference in this Act to an area of generic technology shall be read as a reference to an area of technology in respect of which a declaration under section 30 is in force.
4(4)
(Repealed by No 15 of 2004)
History
S 4(4) repealed by No 15 of 2004, s 3 and Sch 1 item 19, effective 11 September 2004. For transitional provisions, see note under Part III heading. S 4(4) formerly read:
4(4)
A company shall be deemed for the purposes of this Act to carry on an eligible activity if, under an agreement, that activity is carried on, for and on behalf of, the company.
4(5)
(Repealed by No 63 of 2016)
History
S 4(5) repealed by No 63 of 2016, s 3 and Sch 1 item 11, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 4(5) formerly read:
4(5)
A researcher shall be deemed for the purposes of this Act to carry out a project if, under an agreement, that project is carried out, for and on behalf of, the researcher.
4(6)
(Repealed by No 63 of 2016)
History
S 4(6) repealed by No 63 of 2016, s 3 and Sch 1 item 11, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 4(6) formerly read:
4(6)
A reference in this Act to expenditure incurred or to be incurred by a researcher shall be read as a reference to expenditure incurred or to be incurred by the researcher that, in the opinion of the Board, is reasonable expenditure.
4(7)
(Repealed by No 31 of 2014)
History
S 4(7) repealed by No 31 of 2014, s 3 and Sch 7 item 5, effective 24 June 2014. S 4(7) formerly read:
4(7)
For the purposes of this Act:
(a)
the Chairperson may be referred to as the Chairman or Chairwoman, as the case requires; and
(b)
(Repealed by No 164 of 2007)
(c)
the Chairperson of a committee may be referred to as the Chairman of the committee or Chairwoman of the committee, as the case requires.
S 4(7) amended by No 164 of 2007, s 3 and Sch 12 items 8 and 9, by inserting "and" at the end of para (a) and repealing para (b), effective 27 September 2007. Para (b) formerly read:
(b)
the acting Chairperson may be referred to as the acting Chairman or the acting Chairwoman, as the case requires; and
4(8)
For the purposes of this Act, the
Pooled Development Funds Act 1992, the
Venture Capital Act 2002 and any other Act, a person gives information, or produces a document, to the Board if the person gives the information, or produces the document, to:
(a)
the Board; or
(b)
a member of the Board; or
(c)
a committee; or
(d)
a member of a committee; or
(e)
a member of the staff assisting the Board or a committee (see section
25); or
(f)
a consultant assisting the Board or a committee (see section
25).
History
S 4(8) inserted by No 164 of 2007, s 3 and Sch 12 item 10, effective 27 September 2007.
4(9)
A reference in this Act to research is a reference to research in any field.
History
S 4(9) inserted by No 63 of 2016, s 3 and Sch 1 item 12, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
History
S 4 amended by No 66 of 1991, 224 of 1992, and 78 of 1996.
SECTION 5
5
APPLICATION
This Act extends to every external Territory referred to in the definition of
Australia
.
History
S 5 substituted by No 33 of 2016, s 3 and Sch 5 item 70, effective 1 July 2016. S 5 formerly read:
SECTION 5 EXTENSION OF ACT TO EXTERNAL TERRITORIES
5(1)
This Act extends to all the external Territories, other than Norfolk Island.
5(2)
If, and so long as, the regulations so prescribe, this Act extends to Norfolk Island.
PART II - ADMINISTRATION
SECTION 6
6
ESTABLISHMENT OF INDUSTRY INNOVATION AND SCIENCE AUSTRALIA
The body known immediately before the commencement of the
Industry Research and Development Amendment (Industry Innovation and Science Australia) Act 2021 as Innovation and Science Australia is continued in existence with the new name Industry Innovation and Science Australia.
Note:
Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.
History
S 6 substituted by No 101 of 2021, s 3 and Sch 1 item 2, effective 11 September 2021. S 6 formerly read:
SECTION 6 ESTABLISHMENT OF INNOVATION AND SCIENCE AUSTRALIA
6
The body known immediately before the commencement of this section as Innovation Australia is continued in existence with the new name Innovation and Science Australia.
Note:
See also section 25B of the Acts Interpretation Act 1901.
S 6 substituted by No 63 of 2016, s 3 and Sch 1 item 13, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 6 formerly read:
SECTION 6 ESTABLISHMENT OF INNOVATION AUSTRALIA
6
There is established by this section a board by the name of Innovation Australia.
S 6 substituted by No 164 of 2007, s 3 and Sch 12 item 11, effective 27 September 2007. No 164 of 2007, s 3 and Sch 12 items 279 to 287 contains the following transitional provisions:
Interpretation
279
In this Part:
new Board
means Innovation Australia, established by section 6 of the Industry Research and Development Act 1986 (as amended by this Schedule).
former Board
means:
(a)
the Industry Research and Development Board that was established by the Industry Research and Development Act 1986 (as in force before 27 September 2007); or
(b)
the Venture Capital Registration Board that was established by the Pooled Development Funds Act 1992 (as in force before 27 September 2007).
Things done to a former Board before commencement
(1)
Any thing done to a former Board before 27 September 2007 is taken, on and after that commencement, to have been done to the new Board.
(2)
Without limiting subitem (1), examples of things done to a former Board include, but are not limited to, the following:
(a)
the making of applications or requests to the former Board;
(b)
the making of agreements with the former Board;
(c)
the giving of notices, documents or other things to the former Board;
(d)
the giving of directions by the Minister to the former Board.
Things done to the Chairperson or acting Chairperson of a former Board before commencement
(1)
Any thing done to the Chairperson, or acting Chairperson, of a former Board before 27 September 2007 is taken, on and after that commencement, to have been done to the Chairperson of the new Board.
(2)
Without limiting subitem (1), examples of things done to the Chairperson of a former Board include, but are not limited to, the giving of notices or advice to the Chairperson.
Things done by a former Board before commencement
(1)
Any thing done by a former Board before 27 September 2007 is taken, on and after that commencement, to have been done by the new Board.
(2)
Without limiting subitem (1), examples of things done by a former Board include, but are not limited to, the following:
(a)
the making of determinations or decisions by the former Board;
(b)
the granting or revoking of registrations, approvals, certificates or other things by the former Board;
(c)
the making of requests by the former Board;
(d)
the giving of directions by the former Board;
(e)
the making of guidelines by the former Board;
(f)
the formulation of criteria by the former Board;
(g)
the approval of forms by the former Board;
(h)
the making of requirements by the former Board;
(i)
the making of agreements by the former Board;
(j)
the giving of notices, documents or other things by the former Board.
(3)
Without limiting subitem (1), if, after 27 September 2007, the new Board is required under section
46 of the
Industry Research and Development Act 1986 (as amended by this Schedule) to give a report in relation to a financial year that commenced before 27 September 2007, then the new Board must include in the report any matter that, had the amendments made by this Schedule not been made, a former Board would have been required to include in a report for that year under:
(a)
section
46 of the
Industry Research and Development Act 1986 (as in force before 27 September 2007); or
(b)
section
75 of the
Pooled Development Funds Act 1992 (as in force before 27 September 2007); or
(c)
section
33-1 of the
Venture Capital Act 2002 (as in force before 27 September 2007).
Things done by the Chairperson or acting Chairperson of a former Board before commencement
(1)
Any thing done by the Chairperson, or acting Chairperson, of a former Board before 27 September 2007 is taken, on and after that commencement, to have been done by the Chairperson of the new Board.
(2)
Without limiting subitem (1), examples of things done by the Chairperson of a former Board include, but are not limited to, the following:
(a)
the making of inquiries or reports by the Chairperson; or
(b)
a determination, by the Chairperson, of the form of records;
(c)
the signing of documents by the Chairperson.
Things done by a member or acting member of a former Board before commencement
(1)
Any thing done by a member, or acting member, of a former Board before 27 September 2007 is taken, on and after that commencement, to have been done by a member of the new Board.
(2)
Without limiting subitem (1), examples of things done by a member of a former Board include, but are not limited to, the signing of a certificate by the member.
Things done by a person authorised by a former Board before commencement
(1)
Any thing done by a person authorised by a former Board before 27 September 2007 is taken, on and after that commencement, to have been done by a person authorised by the new Board.
(2)
Without limiting subitem (1), examples of things done by a person authorised by a former Board include, but are not limited to, the signing of a certificate by the person.
References to a former Board in instruments etc.
286
A reference to a former Board in the following:
(a)
a legislative instrument;
(b)
guidelines made or criteria formulated under the
Industry Research and Development Act 1986 or the
Venture Capital Act 2002;
(c)
certificates, notices or other documents given to or by the former Board under the
Industry Research and Development Act 1986, the
Pooled Development Funds Act 1992 or the
Venture Capital Act 2002
(d)
directions given by the Minister to the former Board under the
Industry Research and Development Act 1986 or the
Pooled Development Funds Act 1992;
(e)
forms approved by the former Board under the
Industry Research and Development Act 1986;
(f)
agreements made with the former Board under the
Industry Research and Development Act 1986;
is taken, after 27 September 2007, to be a reference to the new Board.
Committees
287
An appointment of a member of a committee under section
22 of the
Industry Research and Development Act 1986 that is in force immediately before 27 September 2007 is taken, on that commencement, to be revoked.
S 6 formerly read:
SECTION 6 ESTABLISHMENT OF BOARD
6
There is established by this Act a Board by the name of the Industry Research and Development Board.
SECTION 7
7
FUNCTIONS OF BOARD
The functions of the Board are:
(aa)
to provide independent strategic advice to the Secretary, the Minister and other Ministers in relation to industry, innovation, science and research matters; and
(ab)
to undertake audits of, and prepare, review and amend plans in relation to, industry, innovation, science and research matters; and
(ac)
to promote investment in industry, innovation, science and research; and
(ad)
to commission and publish research in relation to industry, innovation, science and research matters; and
(aaa)
(Repealed by No 63 of 2016)
(a)
such functions as are conferred on it by a provision of this Act (other than this section); and
(b)
to evaluate, and to advise the Minister about, the
Pooled Development Funds Act 1992 and the
Venture Capital Act 2002, and the Commonwealth's income tax laws as they operate in relation to those Acts; and
(b)
(Repealed by No 15 of 2004)
(c)
such functions as are conferred on it by the
Pooled Development Funds Act 1992, the
Venture Capital Act 2002 or any other Act; and
(ca)
to give information it obtains under Part
2,
3 or
4 of the
Venture Capital Act 2002 to the Commissioner for the purposes of implementing and administering the taxation law (within the meaning of the
Taxation Administration Act 1953); and
(d)
to do anything incidental or conducive to the performance of any of the above functions.
History
S 7 amended by No 63 of 2016, s 3 and Sch 1 items 14 and 15, by substituting para (aa) to (ad) for para (aaa) and substituting para (d), effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. Para (aaa) and (d) formerly read:
(aaa)
in accordance with Ministerial directions under section 18A or 19 - to provide technical assessments to the Minister in relation to:
(i)
proposals for research and development, or proposals for innovation, under programs to which those directions apply; or
(ii)
the progress of particular research and development or particular innovation initiatives in respect of which the expenditure of Commonwealth money has been approved under such programs; and
(d)
any functions specified in a direction in force under section 19.
S 7 amended by No 93 of 2011, s 3 and Sch 2 items 29 and 30, by repealing para (aa) and substituting "Commissioner" for "Commissioner of Taxation" in para (ca), effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. Para (aa) formerly read:
(aa)
such functions as are conferred on it by the finance scheme guidelines; and
S 7 amended by No 164 of 2007, s 3 and Sch 12 items 12 to 14, by inserting para (b), inserting "the Pooled Development Funds Act 1992, the Venture Capital Act 2002 or" after "by" in para (c) and inserting para (ca), effective 27 September 2007.
S 7 amended by No 15 of 2004, s 3 and Sch 1 items 20 to 22, by inserting para (aaa), inserting "and" at the end of paras (a) and (aa) and repealing para (b), effective 11 September 2004. For transitional provisions, see note under Part III heading. Para (b) formerly read:
(b)
to make recommendations to the Minister on the proportions of the money to be committed in a financial year for the purposes of this Act that should be committed in respect of each of discretionary grants, generic technology grants, payments under national interest agreements and payments under national procurement development program agreements;
S 7 amended by Nos 66 of 1991 and 224 of 1992.
SECTION 8
8
POWERS OF BOARD
The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
SECTION 9
CONSTITUTION OF BOARD
9(1)
The Board shall consist of:
(a)
a Chairperson; and
(aa)
a Deputy Chairperson; and
(b)
where the Minister considers it appropriate - the person who, at any time, is performing the duties of an office or position in the Australian Public Service that is designated by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(c)
not less than 3, or more than 12, other members.
History
S 9(1) amended by No 63 of 2016, s 3 and Sch 1 item 41, by substituting "notifiable instrument" for "notice in writing published in the Gazette" in para (b), effective 20 October 2016.
S 9(1) amended by No 63 of 2016, s 3 and Sch 1 items 16-18, by substituting "Chairperson; and" for "Chairperson;" in para (a), inserting para (aa) and substituting "3, or more than 12" for "4, or more than 13" in para (c), effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
S 9(1) amended by Act No 146 of 1999, s 3 and Sch 1 item 544, by inserting "or position" after "office" in para (b), effective 5 December 1999.
9(2)
The appointed members shall be appointed by the Minister in writing.
History
S 9(2) amended by No 63 of 2016, s 3 and Sch 1 item 19, by substituting "Minister" for "Governor-General", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
9(3)
The appointed members shall be appointed as part-time members.
9(4)
A member holds office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the Minister in writing.
9(5)
The performance of the functions or the exercise of the powers of the Board is not affected by a vacancy in the office of Chairperson or Deputy Chairperson, or because the number of members referred to in paragraph (1)(c) falls below 3 for not longer than 6 months.
History
S 9(5) amended by No 63 of 2016, s 3 and Sch 1 items 20 and 21, by inserting "or Deputy Chairperson," and substituting "3" for "4", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
History
S 9 amended by No 59 of 1988.
SECTION 10
PERIOD OF APPOINTMENT OF MEMBERS
10(1)
Subject to this Act, an appointed member holds office for such period, not exceeding 3 years, as is specified in the instrument of the member's appointment, but he or she is eligible for re-appointment.
History
S 10(1) amended by No 15 of 1999, s 3 and Sch 1 item 1, by substituting "3" for "5", effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
10(2)
A person must not be appointed as an appointed member if the person has, at any time before that appointment, served 2 consecutive terms as a member of the Board (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
History
S 10(2) inserted by No 15 of 1999, s 3 and Sch 1 item 2, effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
10(3)
Before the Minister appoints a person as an appointed member for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the appointed members are appointed do not all end at the same time.
History
S 10(3) amended by No 63 of 2016, s 3 and Sch 1 item 22, by substituting "Minister" for "Governor-General", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
S 10(3) inserted by No 15 of 1999, s 3 and Sch 1 item 2, effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
SECTION 11
11
DUTIES OF CHAIRPERSON
It is the duty of the Chairperson to ensure the efficient and orderly conduct of the business of the Board, and for that purpose, the Chairperson:
(a)
must make, or cause to be made, such inquiries as the Chairperson thinks necessary into:
(i)
applications made under this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(ii)
any other matter relevant to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; and
(b)
may make, or cause to be made, to the Board such reports in relation to those applications as the Chairperson thinks fit; and
(c)
may determine the form of the records to be kept by the Board.
History
S 11 renumbered from s 11(1) by No 93 of 2011, s 3 and Sch 2 item 31, by omitting "(1)" before "It is the duty of the Chairperson", effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
S 11(1) amended by No 164 of 2007, s 3 and Sch 12 items 15 to 18, by omitting ", or an acting Chairperson," after "duty of the Chairperson" and omitting "or an acting Chairperson" (last occurring), substituting para (a) and inserting "those" before "applications" in para (b), effective 27 September 2007. Para (a) formerly read:
(a)
shall make, or cause to be made, such inquiries into applications or into any other matter relevant to the operation of this Act as the Chairperson thinks necessary;
11(2)
(Repealed by No 93 of 2011)
History
S 11(2) repealed by No 93 of 2011, s 3 and Sch 2 item 32, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. S 11(2) formerly read:
11(2)
In this section:
this Act
includes finance scheme guidelines.
History
S 11 amended by No 224 of 1992.
SECTION 12
REMUNERATION AND ALLOWANCES
12(1)
The appointed members shall be paid:
(a)
such remuneration as is determined by the Remuneration Tribunal; and
(b)
such allowances as are prescribed.
12(2)
This section has effect subject to the
Remuneration Tribunal Act 1973.
History
S 12 amended by No 43 of 1996.
SECTION 13
LEAVE OF ABSENCE
13(1)
The Minister may grant leave to the Chairperson to be absent from a meeting or meetings of the Board.
13(2)
The Chairperson may grant leave to another member to be absent from a meeting or meetings of the Board.
SECTION 14
14
RESIGNATION
The Chairperson, the Deputy Chairperson or another appointed member may resign the office of Chairperson, Deputy Chairperson or member, as the case may be, by writing signed by him or her and delivered to the Minister.
History
S 14 substituted by No 63 of 2016, s 3 and Sch 1 item 23, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 14 formerly read:
SECTION 14 RESIGNATION
14
The Chairperson or another appointed member may resign the office of Chairperson or member, as the case may be, by writing signed by him or her and delivered to the Governor-General.
SECTION 15
TERMINATION OF APPOINTMENT
15(1)
The Minister may terminate the appointment of an appointed member:
(a)
for misbehaviour; or
(b)
for physical or mental incapacity.
15(2)
If an appointed member:
(a)
becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b)
fails, without reasonable excuse, to comply with the member's obligations under section
16; or
(c)
is absent from 3 consecutive meetings of the Board otherwise than:
(i)
on business of the Board undertaken with the approval of the Board or of a committee; or
(ii)
on leave of absence granted under section 13;
the Minister shall remove the member from office.
History
S 15 amended by No 63 of 2016, s 3 and Sch 1 item 24, by substituting "Minister" for "Governor-General" (wherever occurring), effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
SECTION 16
DISCLOSURE OF INTERESTS BY MEMBERS OF BOARD
16(1)
A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Board shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the Board.
16(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Board and the member shall not, unless the Minister or the Board otherwise determines:
(a)
be present during any deliberation of the Board with respect to that matter; or
(b)
take part in any decision of the Board with respect to that matter.
16(3)
For the purpose of the making of a determination by the Board under subsection (2) in relation to a member who has made a disclosure under subsection (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a)
be present during any deliberation of the Board for the purpose of making the determination; or
(b)
take part in the making by the Board of the determination.
16(4)
(Repealed by No 164 of 2007)
History
S 16(4) repealed by No 164 of 2007, s 3 and Sch 12 item 19, effective 27 September 2007. S 16(4) formerly read:
16(4)
In this section, a reference to a member shall be read as including a reference to an acting member.
SECTION 17
ACTING APPOINTMENTS
17(1)
The Minister may appoint the Deputy Chairperson, a member or other person to act as Chairperson:
(a)
during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b)
during any period, or during all periods, when the Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Chairperson;
but a person so appointed shall not continue so to act for more than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 17(1) amended by No 63 of 2016, s 3 and Sch 1 item 25, by substituting "the Deputy Chairperson, a member or other person" for "a member or other person", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
S 17(1) amended by No 46 of 2011, s 3 and Sch 2 item 708, by inserting a note at the end, effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
17(1A)
The Minister may appoint a member or other person to act as Deputy Chairperson:
(a)
during a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or
(b)
during any period, or during all periods, when the Deputy Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Deputy Chairperson;
but a person so appointed must not continue to act in that appointment for more than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 17(1A) inserted by No 63 of 2016, s 3 and Sch 1 item 26, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
17(2)
Where the number of members referred to in paragraph
9(1)(c) is less than 10, the Minister may appoint a person who is not a member to act as a member, but a person so appointed shall not continue so to act:
(a)
if and after the number of those members ceases to be less than 10; or
(b)
for longer than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 17(2) amended by No 46 of 2011, s 3 and Sch 2 item 708, by inserting a note at the end, effective 27 December 2011. For saving and transitional provisions see note under s 17(1).
17(3)
The Minister may appoint a person who is not a member to act in the place of a member referred to in paragraph
9(1)(c) during any period, or during all periods, when the member is acting as Chairperson, is absent from Australia or is, for any other reason, unable to perform the duties of the office of member, but a person so appointed shall not continue so to act for longer than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 17(3) amended by No 46 of 2011, s 3 and Sch 2 item 708, by inserting a note at the end, effective 27 December 2011. For saving and transitional provisions see note under s 17(1).
17(4)
(Repealed by No 46 of 2011)
History
S 17(4) repealed by No 46 of 2011, s 3 and Sch 2 item 709, effective 27 December 2011. For saving and transitional provisions see note under s 17(1). S 17(4) formerly read:
17(4)
An appointment of a person under subsection (1) or (3) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
17(5)
(Repealed by No 46 of 2011)
History
S 17(5) repealed by No 46 of 2011, s 3 and Sch 2 item 709, effective 27 December 2011. For saving and transitional provisions see note under s 17(1). S 17(5) formerly read:
17(5)
Where a person is acting as the Chairperson otherwise than because of a vacancy in the office of Chairperson and the office of Chairperson becomes vacant while the person is so acting then, subject to subsection (4), the person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the day on which the vacancy occurred expires, whichever occurs first.
17(6)
(Repealed by No 46 of 2011)
History
S 17(6) repealed by No 46 of 2011, s 3 and Sch 2 item 709, effective 27 December 2011. For saving and transitional provisions see note under s 17(1). S 17(6) formerly read:
17(6)
The Minister may:
(a)
determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed to act as the Chairperson or a member; and
(b)
terminate such an appointment at any time.
17(7)
(Repealed by No 46 of 2011)
History
S 17(7) repealed by No 46 of 2011, s 3 and Sch 2 item 709, effective 27 December 2011. For saving and transitional provisions see note under s 17(1). S 17(7) formerly read:
17(7)
A person appointed to act as the Chairperson or another member may resign by writing signed by the person and delivered to the Minister.
17(8)
(Repealed by No 164 of 2007)
History
S 17(8) repealed by No 164 of 2007, s 3 and Sch 12 item 20, effective 27 September 2007. S 17(8) formerly read:
17(8)
While a person is acting as the Chairperson or as another member, the person has and may exercise all the powers, and shall perform all the duties, of the Chairperson or the member, as the case may be.
17(9)
(Repealed by No 46 of 2011)
History
S 17(9) repealed by No 46 of 2011, s 3 and Sch 2 item 709, effective 27 December 2011. For saving and transitional provisions see note under s 17(1). S 17(9) formerly read:
17(9)
Anything done by or in relation to a person purporting to act under subsection (1), (2) or (3) is not invalid on the grounds that:
(a)
the occasion for the person's appointment had not arisen;
(b)
there is a defect or irregularity in connection with the person's appointment;
(c)
the person's appointment had ceased to have effect; or
(d)
the occasion for the person to act had not arisen or had ceased.
SECTION 18
MEETINGS OF BOARD
18(1)
The Board shall hold such meetings as are necessary for the efficient performance of its functions.
18(2)
The Chairperson:
(a)
may, at any time, convene a meeting of the Board; and
(b)
shall, if directed by the Minister to convene a meeting of the Board, convene a meeting of the Board.
18(3)
The Chairperson shall preside at all meetings of the Board at which he or she is present.
18(4)
If the Chairperson is not present at a meeting of the Board:
(a)
the Deputy Chairperson is to preside; or
(b)
if the Deputy Chairperson is not present - the members present must appoint one of their number to preside at the meeting.
History
S 18(4) substituted by No 63 of 2016, s 3 and Sch 1 item 27, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 18(4) formerly read:
18(4)
If the Chairperson is not present at a meeting of the Board, the members present at the meeting shall elect one of their number to preside at the meeting.
18(5)
At a meeting of the Board, 4 members constitute a quorum.
18(6)
Questions arising at a meeting of the Board shall be determined by a majority of the votes of the members present and voting and:
(a)
if the Chairperson is present - the Chairperson has a deliberative vote and, in the case of an equality of votes, also has a casting vote; or
(b)
if the Chairperson is not present and a question arising at the meeting cannot be determined by a majority of the votes of the members present and voting - the question shall be deferred to a meeting at which the Chairperson is present.
18(7)
The Board shall cause minutes of its meetings to be kept.
18(8)
(Repealed by No 164 of 2007)
History
S 18(8) repealed by No 164 of 2007, s 3 and Sch 12 item 21, effective 27 September 2007. S 18(8) formerly read:
18(8)
In this section:
(a)
a reference to the Chairperson shall, if there is an acting Chairperson, be read as a reference to the acting Chairperson; and
(b)
a reference to a member shall be read as including a reference to an acting member.
SECTION 18A
18A
MINISTER MAY GIVE DIRECTIONS CONCERNING THE PROVISION OF TECHNICAL ASSESSMENTS
(Repealed by No 63 of 2016)
History
S 18A repealed by No 63 of 2016, s 3 and Sch 1 item 28, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 18A formerly read:
SECTION 18A MINISTER MAY GIVE DIRECTIONS CONCERNING THE PROVISION OF TECHNICAL ASSESSMENTS
18A(1)
The Minister may, in relation to any program relating to research and development matters or innovation matters that is administered by the Department, by notice in writing delivered to the Chairperson, give directions to the Board concerning the provision to the Minister of technical assessments:
(a)
of proposals for research and development, or proposals for innovation, under that program; and
(b)
of the progress of research and development, or innovation, in respect of which the expenditure of Commonwealth money has been approved under that program.
18A(2)
Without limiting the generality of subsection (1), Ministerial directions that the Board provide a technical assessment of a research and development proposal, or an innovation proposal, may include a requirement that the Board consider and report to the Minister on whether the proposal is likely to lead to results that can be exploited on normal commercial terms or will otherwise benefit the Australian economy.
S 18A inserted by No 15 of 2004, s 3 and Sch 1 item 23, effective 11 September 2004. For transitional provisions, see note under Part III heading.
SECTION 19
ADDITIONAL FUNCTIONS OF BOARD
Directions conferring additional functions
19(1)
The Minister may, by notifiable instrument, give directions to the Board that a function specified in the direction (being a function relating to the object of this Act, the
Pooled Development Funds Act 1992 or the
Venture Capital Act 2002) is an additional function of the Board.
Directions about the performance of functions and exercise of powers
19(2)
The Minister may, by notifiable instrument, give written directions to the Board about the performance of its functions or the exercise of its powers.
19(3)
Without limiting subsection (2), the Minister may give directions to the Board in relation to:
(a)
the provision of technical assessments to the Minister in relation to programs or activities, or proposals for programs or activities, under or in connection with this Act; or
(b)
the provision of a report or advice on a matter that relates to:
(i)
any of the Board's functions or powers; or
(ii)
the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(iii)
the operation of the Commonwealth's income tax laws as they operate in relation to this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(c)
policies and practices to be followed by the Board in the performance of its functions and the exercise of its powers.
19(4)
Subsection (2) does not empower the Minister to direct that the Board perform any of its functions, or exercise any of its powers, in a particular way in a particular case.
Limits and obligations relating to directions under this section
19(5)
A direction under subsection (1) or (2) must not confer a function on the Board to commit or authorise the expenditure of Commonwealth money.
19(6)
The Board must comply with a direction given under this section.
History
S 19 substituted by No 63 of 2016, s 3 and Sch 1 item 28, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 19 formerly read:
SECTION 19
SECTION 19 ADDITIONAL FUNCTIONS OF BOARD
19
The Minister may, by notice in writing delivered to the Chairperson and expressed to be given under this section, give directions to the Board that a function specified in the directions, being a function relating to the object of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002, is an additional function of the Board.
19(2)
(Repealed by No 15 of 2004)
History
S 19(2) repealed by No 15 of 2004, s 3 and Sch 1 item 24, effective 11 September 2004. For transitional provisions, see note under Part III heading. No 15 of 2004, s 3 and Sch 1 item 25 also contains the following saving provision:
Saving provision
25
Despite the repeal of subsection 19(2) of the Industry Research and Development Act 1986, that subsection continues to apply in relation to:
(a)
any direction given by the Minister under that section before the date of commencement of Schedule 1 to this Act; and
(b)
any revocation of such a direction made on or after that date;
as if the subsection had not been repealed.
S 19(2) formerly read:
19(2)
The Minister shall forthwith cause to be published in the Gazette particulars of any directions given under subsection (1) and of any revocation of any such directions.
S 19 amended by No 164 of 2007, s 3 and Sch 12 items 22 and 23, by inserting ", the Pooled Development Funds Act 1992 or the Venture Capital Act 2002" after "this Act", effective 27 September 2007.
SECTION 19A
19A
GENERAL PROVISIONS CONCERNING DIRECTION POWERS UNDER SECTIONS 18A AND 19
(Repealed by No 63 of 2016)
History
S 19A repealed by No 63 of 2016, s 3 and Sch 1 item 28, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 19A formerly read:
SECTION 19A GENERAL PROVISIONS CONCERNING DIRECTION POWERS UNDER SECTIONS 18A AND 19
19A(1)
For the avoidance of doubt, a direction given to the Board after the commencement of this section under section 18A or 19 must not confer a function on the Board to commit, authorise or recommend the expenditure of Commonwealth money.
19A(2)
The Minister must publish in the Gazette any direction under section 18A or 19 or any revocation of such a direction.
S 19A inserted by No 15 of 2004, s 3 and Sch 1 item 26, effective 11 September 2004. For transitional provisions, see note under Part III heading.
SECTION 19B
19B
MINISTER MAY REQUIRE PROVISION OF ADVICE
(Repealed by No 63 of 2016)
History
S 19B repealed by No 63 of 2016, s 3 and Sch 1 item 28, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 19B formerly read:
SECTION 19B MINISTER MAY REQUIRE PROVISION OF ADVICE
19B(1)
The Minister may, by writing given to the Board, require the Board to advise the Minister about a matter connected with the operation of:
(a)
this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(b)
the Commonwealth's income tax laws as they operate in relation to this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002.
19B(2)
The Board must comply with such a requirement.
19B(3)
A requirement made under subsection (1) is not a legislative instrument.
S 19B inserted by No 164 of 2007, s 3 and Sch 12 item 24, effective 27 September 2007.
SECTION 20
20
DIRECTIONS FOR POLICIES AND PRACTICES OF BOARD
(Repealed by No 63 of 2016)
History
S 20 repealed by No 63 of 2016, s 3 and Sch 1 item 28, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 20 formerly read:
SECTION 20 DIRECTIONS FOR POLICIES AND PRACTICES OF BOARD
20(1)
The Minister may, from time to time, by notice in writing delivered to the Chairperson and expressed to be given under this section, give directions to the Board with respect to the policies and practices to be followed by the Board in the performance of its functions and the exercise of its powers, and the Board shall comply with any such directions that are in force.
History
S 20(1) amended by No 164 of 2007, s 3 and Sch 12 item 25, by substituting "and the exercise of its powers" for ", and the exercise of its powers, under this Act", effective 27 September 2007.
20(2)
Subject to subsection (2A), the Minister must not give directions under subsection (1) unless and until the Minister:
(a)
has given the Chairperson:
(i)
particulars in writing of the proposed directions; and
(ii)
an invitation to the Board in writing to give the Minister, within a time specified in the invitation, any comments in writing which the Board wishes to give in relation to the proposed directions; and
(b)
has considered any comments given in response to that invitation.
20(2A)
Subsection (2) does not apply if the directions are given in accordance with a request made by the Board.
20(3)
The Minister shall forthwith cause to be published in the Gazette particulars of any directions given under subsection (1) and of any revocation of any such directions.
20(4)
Subsection (1) does not empower the Minister to direct that the Board perform any of its functions, or exercise any of its powers, in a particular way in a particular case.
History
S 20(4) substituted by No 164 of 2007, s 3 and Sch 12 item 26, effective 27 September 2007. S 20(4) formerly read:
20(4)
Nothing in this section authorises the Minister to give directions to the Board in relation to a particular researcher.
20(5)
(Repealed by No 164 of 2007)
History
S 20(5) repealed by No 164 of 2007, s 3 and Sch 12 item 27, effective 27 September 2007. S 20(5) formerly read:
20(5)
In this section, a reference to the Chairperson shall, if there is an acting Chairperson, be read as a reference to the acting Chairperson.
20(6)
(Repealed by No 164 of 2007)
History
S 20(6) repealed by No 164 of 2007, s 3 and Sch 12 item 27, effective 27 September 2007. S 20(6) formerly read:
20(6)
In this section:
this Act
includes finance scheme guidelines.
S 20 amended by Nos 66 of 1991, 224 of 1992 and 78 of 1996.
SECTION 20A
MINISTER MAY GIVE ADVICE TO BOARD OR COMMITTEE
20A(1)
The Minister may give advice to the Board, or to a committee, on any matter that relates, directly or indirectly, to the performance of any of the Board's functions.
20A(2)
The advice is to be in writing, delivered to the Chairperson of the Board or of the committee, as the case may be, and is to be expressed to be given under this section.
20A(3)
The advice must not relate to a particular person.
20A(4)
The Board or committee must consider the advice at its first meeting after the advice is received, but the Board or committee is not required to act in accordance with the advice.
History
S 20A inserted by No 78 of 1996.
SECTION 21
DELEGATION BY BOARD
21(1)
The Board may, by resolution, delegate any or all of its functions and powers to any of the following:
(a)
the Chairperson;
(b)
the Deputy Chairperson;
(c)
a member of the Board;
(d)
a committee;
(e)
a member of the staff assisting the Board.
History
S 21(1) amended by No 92 of 2020, s 3 and Sch 6 item 7, by omitting "who is an SES employee, or acting SES employee" after "assisting the Board" from para (e), effective 1 January 2021.
S 21(1) substituted by No 63 of 2016, s 3 and Sch 1 item 29, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 21(1) formerly read:
21(1)
The Board may, by resolution, delegate to the Chairperson, another member or a member of the staff assisting the Board, all or any of its functions and powers, other than its functions or powers:
(a)
for PDFs - to make or revoke registration declarations under the Pooled Development Funds Act 1992; and
(b)
to register entities or revoke registration under Part 7A of the Pooled Development Funds Act 1992; and
(c)
to register limited partnerships as VCLPs, ESVCLPs or AFOFs or revoke registration under Part 2 of the Venture Capital Act 2002; and
(d)
to approve ESVCLPs' investment plans, and their replacement plans, under Part 2 of the Venture Capital Act 2002; and
(e)
to register entities as eligible venture capital investors or revoke registration under Part 3 of the Venture Capital Act 2002; and
(f)
to make determinations under Part 4 of the Venture Capital Act 2002.
S 21(1) substituted by No 164 of 2007, s 3 and Sch 12 item 28, effective 27 September 2007. S 21(1) formerly read:
21(1)
The Board may, by resolution, either generally or as otherwise provided by the resolution, delegate to the Chairperson, another member, a committee or a member of the staff assisting the Board, all or any of its powers under this Act, other than this power of delegation.
21(2)
(Repealed by No 63 of 2016)
History
S 21(2) repealed by No 63 of 2016, s 3 and Sch 1 item 29, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 21(2) formerly read:
21(2)
The Board may, by resolution, delegate to a committee all or any of its functions and powers (including those referred to in paragraphs (1)(a) to (f).
S 21(2) substituted by No 164 of 2007, s 3 and Sch 12 item 28, effective 27 September 2007. S 21(2) formerly read:
21(2)
A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Board.
21(3)
A delegation of a function or power under this section:
(a)
may be revoked by a resolution of the Board (whether or not constituted by the persons constituting the Board at the time the function or power was delegated); and
(b)
(Repealed by No 164 of 2007)
(c)
continues in force notwithstanding a change in the membership of the Board.
History
S 21(3) amended by No 164 of 2007, s 3 and Sch 12 items 29 to 31, by inserting "function or" after "delegation of a", substituting "function or power was delegated); and" for "power was delegated);" in para (a) and repealing para (b), effective 27 September 2007. Para (b) formerly read:
(b)
does not prevent the exercise of the power by the Board; and
21(4)
Section
34A of the
Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Board were a person.
21(5)
A certificate signed by the Chairperson stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
History
S 21(5) amended by No 164 of 2007, s 3 and Sch 12 item 32, by inserting "function or" after "delegation of a", effective 27 September 2007.
21(6)
A document purporting to be a certificate mentioned in subsection (5) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
21(7)
(Repealed by No 164 of 2007)
History
S 21(7) repealed by No 164 of 2007, s 3 and Sch 12 item 33, effective 27 September 2007. S 21(7) formerly read:
21(7)
In this section, a reference to the Chairperson shall, if there is an acting Chairperson, be read as a reference to the acting Chairperson.
21(8)
(Repealed by No 164 of 2007)
History
S 21(8) repealed by No 164 of 2007, s 3 and Sch 12 item 33, effective 27 September 2007. S 21(8) formerly read:
21(8)
In this section:
this Act
includes finance scheme guidelines.
History
S 21 amended by Nos 59 of 1988 and 224 of 1992.
SECTION 22
COMMITTEES
22(1)
The Minister may, by notifiable instrument, appoint such committees as the Minister considers necessary for providing advice to the Board on matters relating to the operation of this Act, the
Pooled Development Funds Act 1992 or the
Venture Capital Act 2002.
History
S 22(1) amended by No 63 of 2016, s 3 and Sch 1 item 42, by substituting "by notifiable instrument" for "from time to time, by notice in writing published in the Gazette", effective 20 October 2016. The amendment does not apply in relation to committees appointed before 20 October 2016.
S 22(1) amended by No 164 of 2007, s 3 and Sch 12 item 34, by inserting ", the Pooled Development Funds Act 1992 or the Venture Capital Act 2002" after "this Act", effective 27 September 2007.
22(1A)
In addition to providing advice to the Board as mentioned in subsection (1), a committee may exercise any functions or powers delegated to it by the Board under subsection
21(1).
History
S 22(1A) amended by No 63 of 2016, s 3 and Sch 1 item 30, by substituting "21(1)" for "21(2)", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
S 21(1A) amended by No 164 of 2007, s 3 and Sch 12 item 35, by substituting "functions or powers delegated to it by the Board under subsection 21(2)" for "powers delegated to it by the Board under subsection 21(1)", effective 27 September 2007.
22(2)
A committee shall consist of not more than 7 members (who may include a member or members of the Board) who shall be appointed by the Minister in accordance with subsections (2A), (2B), (2BA) and (2C) and shall hold office, for the periods for which they are appointed, during the pleasure of the Minister.
History
S 22(2) amended by No 164 of 2007, s 3 and Sch 12 item 36, by inserting ", (2BA)" after "(2B)", effective 27 September 2007.
S 22(2) amended by No 15 of 1999, s 3 and Sch 1 items 3 and 4, by inserting "in accordance with subsections (2A), (2B) and (2C)" after "appointed by the Minister", and inserting ", for the periods for which they are appointed," after "office", effective 9 April 1999. These amendments do not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
22(2A)
A member of a committee is to be appointed for a particular period, not exceeding 3 years, determined by the Minister.
History
S 22(2A) inserted by No 15 of 1999, s 3 and Sch 1 item 5, effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
22(2B)
A person must not be appointed as a member of a committee if the person has, at any time before that appointment, served 2 consecutive terms as a member of the committee (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
History
S 22(2B) inserted by No 15 of 1999, s 3 and Sch 1 item 5, effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
22(2BA)
Despite subsection (2B), a person may be appointed as a member of a committee for no more than 2 further consecutive terms if:
(a)
during the previous 2 consecutive terms the person was not the Chairperson of the committee; and
(b)
the person will be the Chairperson of the committee in those further terms.
History
S 22(2BA) inserted by No 164 of 2007, s 3 and Sch 12 item 37, effective 27 September 2007.
22(2C)
Before the Minister appoints a person as a member of a committee for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the committee members are appointed do not all end at the same time.
History
S 22(2C) inserted by No 15 of 1999, s 3 and Sch 1 item 5, effective 9 April 1999. This amendment does not affect the validity of, or the period of, an appointment of a person as a member of the Industry Research and Development Board, or as a member of a committee of that Board, that was in force immediately before 9 April 1999.
22(3)
The Minister may appoint a member of a committee to be the Chairperson of the committee.
22(4)
Where the Minister notifies a committee that he or she does not propose to appoint a Chairperson of the committee under subsection (3), the committee shall elect a member of the committee to be the Chairperson of the committee.
22(5)
A member of a committee shall hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
22(6)
A member of a committee may resign by writing signed by the member and delivered to the Minister.
22(7)
The Board may refer to a committee for advice any matter relating to the operation of this Act, the
Pooled Development Funds Act 1992 or the
Venture Capital Act 2002.
History
S 22(7) amended by No 164 of 2007, s 3 and Sch 12 item 38, by inserting ", the Pooled Development Funds Act 1992 or the Venture Capital Act 2002" after "this Act", effective 27 September 2007.
22(8)
A committee shall cause minutes of its meetings to be kept.
22(9)
(Repealed by No 93 of 2011)
History
S 22(9) repealed by No 93 of 2011, s 3 and Sch 2 item 33, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. S 22(9) formerly read:
22(9)
In this section:
this Act
includes finance scheme guidelines.
History
S 22 amended by Nos 59 of 1988 and 224 of 1992.
SECTION 22A
DELEGATION BY COMMITTEE
22A(1)
A committee may, by resolution, delegate to a member of the committee or to a member of the staff assisting the committee all or any of its functions and powers (including a function or power delegated to the committee by the Board under subsection
21(1), despite paragraph
34AB(1)(b) of the
Acts Interpretation Act 1901).
History
S 22A(1) amended by No 92 of 2020, s 3 and Sch 6 item 8, by omitting "who is an SES employee, or acting SES employee," after "assisting the committee", effective 1 January 2021.
S 22A(1) amended by No 63 of 2016, s 3 and Sch 1 items 31 and 32, by inserting "who is an SES employee, or acting SES employee," and substituting "21(1)" for "21(2)", effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading.
S 22A(1) amended by No 46 of 2011, s 3 and Sch 2 item 710, by substituting "paragraph 34AB(1)(b)" for "paragraph 34AB(b)", effective 27 December 2011. For saving and transitional provisions see note under s 17(1).
S 22A(1) substituted by No 164 of 2007, s 3 and Sch 12 item 39, effective 27 September 2007. S 22A(1) formerly read:
22A(1)
A committee may, by resolution, delegate to a member of the committee or to a member of the staff assisting the committee all or any of its powers under this Act (including, notwithstanding subsection 21(1) and paragraph 34AB(b) of the Acts Interpretation Act 1901, a power delegated to the committee by the Board).
22A(1A)
(Repealed by No 63 of 2016)
History
S 22A(1A) repealed by No 63 of 2016, s 3 and Sch 1 item 33, effective 20 October 2016. For application and transitional provisions, see note under Pt IV heading. S 22A(1A) formerly read:
22A(1A)
However, a committee must not delegate a function or power that:
(a)
is referred to in paragraph 21(1)(a), (b), (c), (d), (e) or (f); and
(b)
was delegated to the committee by the Board under subsection 21(2).
S 22A(1A) inserted by No 164 of 2007, s 3 and Sch 12 item 39, effective 27 September 2007.
22A(2)
A delegation of a function or power under this section:
(a)
may be revoked by a resolution of the committee (whether or not constituted by the persons constituting the committee when the function or power was delegated); and
(b)
continues in force notwithstanding a change in the membership of the committee.
History
S 22A(2) amended by No 164 of 2007, s 3 and Sch 12 items 40 and 41, by inserting "function or" after "delegation of a" and inserting "function or" after "when the" in para (a), effective 27 September 2007.
22A(3)
A certificate signed by the Chairperson of a committee stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
History
S 22A(3) amended by No 164 of 2007, s 3 and Sch 12 item 42, by inserting "function or" after "delegation of a", effective 27 September 2007.
22A(4)
A document purporting to be a certificate mentioned in subsection (3) shall, unless the contrary is established, be taken to be such a certificate and to have been duly given.
22A(5)
(Repealed by No 164 of 2007)
History
S 22A(5) repealed by No 164 of 2007, s 3 and Sch 12 item 43, effective 27 September 2007. S 22A(5) formerly read:
22A(5)
In this section, a reference to the Chairperson of a committee is, if there is an acting Chairperson of the committee, a reference to the acting Chairperson of the committee.
22A(6)
(Repealed by No 164 of 2007)
History
S 22A(6) repealed by No 164 of 2007, s 3 and Sch 12 item 44, effective 27 September 2007. S 22A(6) formerly read:
22A(6)
n this section:
this Act
includes finance scheme guidelines.
History
S 22A inserted by No 59 of 1988, and amended by No 224 of 1992.
SECTION 23
DIRECTIONS OF BOARD TO COMMITTEES
23(1)
The Board may, by notifiable instrument, give directions with respect to:
(a)
the matters to be taken into account by a committee in giving advice in relation to a matter or matters; or
(b)
the practices to be followed by the committee in the performance of its functions.
History
S 23(1) amended by No 63 of 2016, s 3 and Sch 1 item 44, by substituting "by notifiable instrument" for "from time to time", effective 20 October 2016. No 63 of 2016, s 3 and Sch 1 item 46 contains the following transitional provision:
46 Transitional provision
46
If, immediately before the commencement of this item, a direction under subsection 23(1) of the Industry Research and Development Act 1986 was in force, the direction is taken, after that commencement, to have been given under that subsection as amended by item 44 of this Schedule.
23(2)
Directions under subsection (1) shall be in writing and shall be given to the Chairperson of the committee to which the directions are given.
23(3)
The Board shall not give directions to a committee under subsection (1) unless and until the Board:
(a)
has given to the Chairperson of the committee:
(i)
particulars in writing of the proposed directions; and
(ii)
an invitation to the Committee in writing to give the Board, within a time specified in the invitation, any comments in writing which the committee wishes to give in relation to the proposed directions; and
(b)
has considered any comments given in response to the invitation.
23(4)
(Repealed by No 63 of 2016)
History
S 23(4) repealed by No 63 of 2016, s 3 and Sch 1 item 45, effective 20 October 2016. S 23(4) formerly read:
23(4)
The Board shall forthwith cause to be published in the Gazette particulars of any directions given under subsection (1) and of any revocation of any such directions.
SECTION 24
DISCLOSURE OF INTERESTS BY MEMBERS OF COMMITTEES
24(1)
A member of a committee who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the committee shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the committee.
24(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the committee and a member of a committee shall not, unless the Minister or the committee otherwise determines:
(a)
be present during any deliberation of the committee with respect to that matter; or
(b)
take part in any decision of the committee with respect to that matter.
24(3)
For the purpose of the making of a determination by the committee under subsection (2) in relation to a member of a committee who has made a disclosure under subsection (1), a member of a committee who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a)
be present during any deliberation of the committee for the purpose of making the determination; or
(b)
take part in the making by the committee of the determination.
SECTION 25
STAFF, CONSULTANTS ETC
25(1)
The staff required to assist the Board and committees in the performance of their functions shall be persons engaged under the
Public Service Act 1999.
History
S 25(1) amended by Act No 146 of 1999, s 3 and Sch 1 item 545, by substituting ``engaged under the Public Service Act 1999'' for ``appointed or employed under the Public Service Act 1922'', effective 5 December 1999.
25(2)
The Board and committees may also be assisted by consultants, or other persons, engaged by the Commonwealth.
History
S 25(2) inserted by No 15 of 1999, s 3 and Sch 1 item 6, effective 9 April 1999.
PART III - FUNCTIONS RELATING TO THE R&D TAX OFFSET
History
Pt III inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. No 93 of 2011, s 3 and Sch 4 items 1 to 6 contains the following application, savings and transitional provisions:
Schedule 4 - Application, savings and transitional provisions
Part 1 - Application provisions
1 Application of repeals and amendments
(1)
The repeals and amendments made by this Act apply:
(a)
so far as they affect assessments - to assessments for income years commencing on or after 1 July 2011; and
(b)
so far as they relate to income years but do not affect assessments - to income years commencing on or after 1 July 2011; and
(c)
otherwise-to acts done or omitted to be done, states of affairs existing, or periods ending on or after the commencement of the first income year commencing on or after 1 July 2011.
Note:
For the purposes of an assessment for an income year commencing on or after 1 July 2011, regard may still be had to acts done or omitted to be done, states of affairs existing, or periods ending during an earlier income year. For example, regard may be had to expenditure incurred by other entities in income years commencing before 1 July 2011 for the purposes of paragraph 355-415(1)(b) of the Income Tax Assessment Act 1997.
(2)
However, each of the following applies in relation to the 2011-12 financial year and all later financial years:
(a)
section 29E of the Industry Research and Development Act 1986 (as inserted by Schedule 2);
(b)
the repeal of paragraph 39H(b) of the Industry Research and Development Act 1986;
(c)
section 46 of the Industry Research and Development Act 1986 (as amended by this Act).
Part 2 - General savings provisions
2 Object
2
The object of this Part is to ensure that, despite the repeals and amendments made by this Act, the full legal and administrative consequences of:
(a)
any act done or omitted to be done; or
(b)
any state of affairs existing; or
(c)
any period ending;
before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.
3 Making and amending assessments, and doing other things etc., in relation to past matters
(1)
Even though a provision is repealed or amended by this Act, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003):
(a)
making or amending an assessment (including under a provision that is itself repealed or amended);
(b)
exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
Note:
Examples of things covered by this subitem are as follows:
(a) an eligible company may object under Part IVC of the Taxation Administration Act 1953 in an income year commencing on or after 1 July 2011 about a notice given under former section 73I of the Income Tax Assessment Act 1936 for an income year commencing before 1 July 2011;
(b) an eligible company seeking registration under former section 39J of the Industry Research and Development Act 1986 for an income year commencing before 1 July 2011 may do so during an income year commencing on or after 1 July 2011;
(c) Innovation Australia may give a certificate under former section 39M of the Industry Research and Development Act 1986 in an income year commencing on or after 1 July 2011 about research and development activities registered for an income year commencing before 1 July 2011.
(2)
Even though a provision is repealed or amended by this Act, the repeal or amendment is disregarded so far as it relates to a state of affairs:
(a)
that exists after the repeal or amendment applies; and
(b)
that relates to:
(i)
an act done or omitted to be done; or
(ii)
a state of affairs existing; or
(iii)
a period ending;
before the repeal or amendment applies.
Note:
Examples of things covered by this subitem are as follows:
(a) an amount may be included in an eligible company's assessable income under former subsection 73BF(4) of the Income Tax Assessment Act 1936 for an income year commencing on or after 1 July 2011 if the company receives in that income year an amount for the results of research and development activities for which the company had deductions under former section 73BA of that Act in an income year commencing before 1 July 2011;
(b) an eligible company's deduction under section 73B of the Income Tax Assessment Act 1936 for expenditure incurred during an income year commencing before 1 July 2011 is reduced because of section 73C of that Act if, in an income year commencing on or after 1 July 2011, the company receives a recoupment of that expenditure from the Commonwealth.
(3)
To avoid doubt, this item extends to the repeal of subsection 286-75(3), and paragraph 286-80(2)(b), in Schedule 1 to the Taxation Administration Act 1953. In particular, if, in a particular case, the period in respect of which an administrative penalty is payable under subsection 286-75(3) in that Schedule:
(a)
has not begun; or
(b)
has begun but not ended;
when those provisions are repealed, then, despite the repeal, those provisions continue to apply in the particular case until the end of the period.
4 Saving of provisions about effect of assessments
4
If a provision or part of a provision that is repealed or amended by this Act deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
5 Repeals disregarded for the purposes of dependent provisions
5
If the operation of a provision (the
subject provision
) of any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003) made under any Act depends to any extent on a provision that is repealed by this Act, the repeal is disregarded so far as it affects the operation of the subject provision.
6 Schedule does not limit operation of the
Acts Interpretation Act 1901
6
This Schedule does not limit the operation of the Acts Interpretation Act 1901.
Former Part III repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. No 15 of 2004, s 3 and Sch 1 item 28 contains the following transitional provisions:
28 Transitional provisions
(1)
Despite the amendments of the Industry Research and Development Act 1986 made by this Act:
(a)
Ministerial directions in force immediately before the commencing day under section 19 of that Act in relation to a program of funding for research and development are taken to continue in force on and after that day for the purpose of facilitating the transitional arrangements set out in subitems (3) to (6); but
(b)
a person or body may not make an application after that day in respect of a research and development proposal under such a program.
(2)
Nothing in subitem (1) implies that:
(a)
the Minister may not give directions, on or after the commencing day, under section 18A of the Industry Research and Development Act 1986, in relation to a program of funding for research and development that is substantially similar to the program for which directions had been given under section 19 of that Act; or
(b)
a person or body may not make an application after that day in respect of a research and development proposal under such a substantially similar program.
(3)
If:
(a)
before the commencing day, a person or body has made an application under the Industry Research and Development Act 1986 for the expenditure of Commonwealth money in respect of a research and development proposal; and
(b)
that proposal is a proposal for research and development to be funded under a program to which Ministerial directions in force immediately before that day under section 19 of that Act apply;
then:
(c)
that application may be considered and dealt with by the Industry Research and Development Board on and after that day; and
(d)
any agreement in relation to the provision of Commonwealth money for that proposal may be entered into by or on behalf of the Board on and after that day;
as if the amendments made by this Schedule had not been made.
(4)
If:
(a)
before the commencing day, the Board had entered into:
(i)
an agreement under section 33 of the Industry Research and Development Act 1986 as in force at that time; or
(ii)
an agreement under the Industry Research and Development Act 1986 in relation to a research and development program to which Ministerial directions in force immediately before that day under section 19 of the Industry Research and Development Act 1986 apply; and
(b)
immediately before the commencing day, any obligation under that agreement is still required to be met;
that agreement continues in force, according to its terms, on and after that day, as if the amendments made by this Schedule had not been made.
(5)
The Industry Research and Development Board may from time to time, on or after the commencing day, for the purpose of determining whether obligations required to be met under an agreement referred to in subitem (3) or (4) are in fact being met, exercise any powers that had been conferred on the Board by or under the Industry Research and Development Act 1986 or by the agreement as if the amendments made by this Schedule had not been made.
(6)
Despite the amendments of the Industry Research and Development Act 1986 made by this Schedule, a prosecution may be instituted, on or after the commencing day, in respect of an offence concerning:
(a)
an application made before that day for:
(i)
the expenditure of Commonwealth money under a program to which Ministerial directions in force immediately before that day under section 19 of that Act apply; or
(ii)
an advance in respect of money that may be paid under such a program; or
(b)
if any agreement is entered into before, on or after that day in relation to such an application - any act or omission, or the provision of or failure to provide any information, in relation to the research and development to which the agreement relates;
as if those amendments had not been made.
(7)
In this item:
commencing day
means the date of commencement of Schedule 1 to this Act.
Part III formerly read:
PART III - GRANTS AND AGREEMENTS
Division 1 - Discretionary Grants
SECTION 26 ELIGIBLE ACTIVITIES
26
The Minister may, by notice in writing published in the Gazette, declare an activity to be an eligible activity for the purposes of the definition of
eligible activity
in subsection 4(1).
SECTION 27 ELIGIBLE COMPANIES
27(1)
Where the Board considers that it would be consistent with the object of this Act for a company which proposes to commence to carry on an eligible activity in Australia to be an eligible company, the Board may, by resolution, declare that company to be an eligible company for the purposes of this Act other than Part IIIA.
27(2)
A declaration under subsection (1) may be revoked by a resolution of the Board (whether or not constituted by the persons constituting the Board at the time the declaration was made).
SECTION 28 AGREEMENTS FOR DISCRETIONARY GRANTS
28(1)
Where:
(a)
a company, being an eligible company, is carrying out, or proposes to carry out, a project of research and development activities; or
(b)
a company, not being an eligible company, is carrying out, or proposes to carry out, a project of research and development activities on behalf of 2 or more bodies corporate where at least one of those bodies corporate is an eligible company;
and the company makes an application to the Board for a grant under this Division in respect of the project, the Board, subject to this Act and to any relevant directions under section 20, may, in its discretion, enter into an agreement, on behalf of the Commonwealth, with the company, for and in relation to, the making of a grant of financial assistance under this Division to the company in respect of expenditure in respect of the project incurred or to be incurred by the company.
28(2)
The Board shall not enter into an agreement under subsection (1):
(a)
after 30 June 1996; or
(b)
in relation to a project that will commence after that day.
SECTION 29 RESTRICTIONS APPLICABLE TO DISCRETIONARY GRANTS
29(1)
There shall be specified in a discretionary grant agreement:
(a)
the financial year or years in which any discretionary grant is, or discretionary grants are, to be payable under the agreement; and
(b)
the amount of the discretionary grant, or the aggregate of the amounts of the discretionary grants, payable under the agreement in that year or in each of those years.
29(2)
The provisions of a discretionary grant agreement shall be such that the amount of the discretionary grant, or of the aggregate of the discretionary grants, payable to a company under the agreement shall not exceed an amount equal to 50% of the total amount that, in the opinion of the Board, is or will be the expenditure incurred, or to be incurred, by the company, after the date of the making of the application because of which the agreement is entered into, in respect of the project to which the agreement relates.
Division 2 - Generic Technology Grants
SECTION 30 GENERIC TECHNOLOGY
30(1)
The Minister may, by notice in writing published in the Gazette, declare an area of technology to be an area of generic technology for the purposes of this Act.
30(2)
Without limiting the generality of subsection (1), the Minister may make a declaration under that subsection in relation to:
(a)
an area of technology that includes other areas of technology; or
(b)
an area of technology that is included in another area of technology.
30(3)
Subject to subsection (4), a declaration under subsection (1) remains in force for 3 years unless it is revoked.
30(4)
Where:
(a)
a declaration under subsection (1) of an area of generic technology has been in force for longer than 2 years; and
(b)
the Minister, after reviewing the effectiveness of support for research and development activities in that area and all other matters that he or she considers relevant, is satisfied that the period for which the declaration should remain in force should be longer than 3 years;
the Minister (whether or not an earlier declaration or declarations under this subsection in relation to that area has or have been made) may, by notice in writing published in the Gazette specifying the longer period, declare that the declaration under subsection (1) is to remain in force for that longer period unless it is revoked.
SECTION 31 AGREEMENTS FOR GENERIC TECHNOLOGY GRANTS
31(1)
Where a researcher is carrying out, or proposes to carry out, a project of research and development activities in an area of generic technology and the researcher makes an application to the Board for a grant under this Division in respect of the project, the Board, subject to this Act and to any relevant directions under section 20, may, in its discretion, enter into an agreement, on behalf of the Commonwealth, with the researcher for and in relation to the making of a grant of financial assistance under this Division to the researcher in respect of expenditure in respect of the project incurred or to be incurred by the researcher.
31(2)
The Board shall not enter into an agreement under subsection (1):
(a)
after 30 June 1996; or
(b)
in relation to a project that will commence after that day.
SECTION 32 RESTRICTIONS APPLICABLE TO GENERIC TECHNOLOGY GRANT AGREEMENTS
32(1)
There shall be specified in a generic technology grant agreement:
(a)
the financial year or years in which any generic technology grant is, or generic technology grants are, to be paid under the agreement; and
(b)
the amount of the generic technology grant, or the aggregate of the amounts of the generic technology grants, payable under the agreement in that year or in each of those years.
32(2)
A generic technology grant agreement may be made in relation to a project in an area of technology which was an area of generic technology when the application for the generic technology grant in relation to the project was made but which has ceased to be an area of generic technology.
Division 3 - National Interest Agreements
SECTION 33 NATIONAL INTEREST AGREEMENTS
33(1)
Where the Board is satisfied that it is in the national interest that the Commonwealth should undertake a project of research and development activities, the Board, subject to this Act and to any relevant directions under section 20, may, on behalf of the Commonwealth, enter into an agreement with a researcher for the carrying out of that project.
33(2)
The Minister may request the Board to consider entering into a national interest agreement in respect of a project of research and development activities specified by the Minister.
33(3)
A researcher may make an application to the Board for a national interest agreement.
SECTION 34 PROVISIONS OF NATIONAL INTEREST AGREEMENTS
34(1)
A national interest agreement:
(a)
may provide that the Commonwealth is to bear the total amount that is or will be the expenditure on the project to which the agreement relates;
(b)
where paragraph (a) applies to the agreement - shall provide that all incorporeal property resulting from the project shall belong to the Commonwealth; and
(c)
where paragraph (a) does not apply to the agreement - shall provide that the Commonwealth shall have a share in all incorporeal property resulting from the project and that the share of the Commonwealth in any such incorporeal property shall bear to the sum of the shares in the property the same proportion as the total amount that is or will be paid by the Commonwealth under the agreement bears to the total amount that is or will be the expenditure on the project to which the agreement relates.
34(2)
In this section,
incorporeal property
includes copyrights, patent rights and trademarks.
Division 3A - National Procurement Development Program Agreements
History
Div 3A inserted by No 66 of 1991.
SECTION 34A NATIONAL PROCUREMENT DEVELOPMENT PROGRAM AGREEMENTS
34A(1)
Subject to this Act and to any relevant directions under section 20, the Board may enter into an agreement, on behalf of the Commonwealth, with a corporate researcher and an Australian government body about a project directed towards meeting the demand, or likely demand, of one or more Australian government bodies or Australian government contractors for goods or services.
34A(1A)
The Board must not enter into an agreement under subsection (1) after the commencement of this subsection.
34A(2)
Except in special cases, the Board must not enter into a national procurement development program agreement unless it is satisfied that the project concerned:
(a)
is directed towards the development of internationally competitive goods or services; and
(b)
involves adequate trialling and demonstration activities.
34A(3)
The Board may refuse to enter into a national procurement development program agreement about a project if the carrying out of the agreement would be likely to give an undue competitive advantage to an Australian government body that carries on business.
34A(4)
A corporate researcher or an Australian government body, or both, may make an application to the Board for a national procurement development program agreement.
34A(5)
In this section:
goods or services
includes the result of a designated activity.
History
S 34A inserted by No 66 of 1991, and amended by No 78 of 1996.
SECTION 34B DESIGNATED ACTIVITIES
34B
The Minister may, by notice published in the Gazette, declare an activity to be a designated activity for the purposes of the definition of
designated activity
in subsection 4(1).
History
S 34B inserted by No 66 of 1991.
Division 4 - Miscellaneous
SECTION 35 APPLICATIONS
35(1)
An application shall be in accordance with a form approved by the Board.
35(2)
An application shall be deemed not to have been made until it has been received on behalf of the Board by a member of the staff assisting the Board or by a person appointed by the Board to receive applications.
35(3)
The Board may refuse to consider an application unless the applicant furnishes such further information, or makes available to the Board such books or records, as the Board specifies, being information, books or records that the Board requires for the performance of its functions under this Act, including the preparation of a report of the Board under section 46.
SECTION 36 RESULTS OF PROJECTS TO BE EXPLOITED
36
The Board shall not enter into an agreement under this Act in relation to a project of research and development activities unless it is satisfied that the results of that project will, where appropriate, be exploited on normal commercial terms and otherwise in a manner that will be for the benefit of the Australian economy.
SECTION 37 ADJUSTMENT OF SUBSIDIES BECAUSE OF FINANCIAL ASSISTANCE
37
Where a researcher has received financial assistance otherwise than under this Act (whether or not from, or out of money provided by, the Commonwealth) and itappears to the Board that the financial assistance has aided the researcher to carry out a project that is the subject of an agreement under this Act, the Board may reduce the amount of any subsidy to the researcher in respect of that project to such extent as it thinks appropriate because of that financial assistance.
SECTION 38 REPAYMENT OF SUBSIDIES ON BREACH OF AGREEMENT
38(1)
Nothing in this Act shall be taken as preventing the inclusion in an agreement under this Act with a researcher of provision for the repayment by the researcher to the Commonwealth on breach by the researcher of the agreement, or in any other circumstances specified in the agreement, of the whole or a part of a subsidy paid to the researcher under the agreement.
38(2)
This Act does not prevent the inclusion in a national procurement development program agreement with an Australian government body of provision for the repayment by that body to the Commonwealth on breach by the body of the agreement, or in any other circumstances specified in the agreement, of the whole or a part of a subsidy paid to the body under the agreement.
SECTION 39 PAYMENTS TO BE MADE TO PERSONS INCURRING COST
39
Nothing in this Act or in an agreement under this Act shall be read as allowing the payment of any subsidy payable under an agreement under this Act in respect of a project otherwise than to:
(a)
the person incurring the cost of that project; or
(b)
where that person has assigned the right to receive the payment to another person and has notified the Board in writing of the assignment - that other person.
Division 1 - Introduction
History
Div 1 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 26
26
OBJECTS
The objects of this Part are:
(a)
to provide integrity for the working out of tax offsets under Division
355 (about R&D) of the
Income Tax Assessment Act 1997; and
(b)
to increase certainty through findings about matters relevant to the working out of those tax offsets; and
(c)
to improve access for small and medium R&D entities to quality research services by maintaining a register of research service providers.
Note:
The integrity mentioned in paragraph (a) is provided, for example, by:
(a) the Board registering entities seeking these tax offsets; and
(b) the Board conducting compliance checks on those entities.
History
S 26 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 26 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
SECTION 26A
26A
SIMPLIFIED OUTLINE
The following is a simplified outline of this Part:
• The Board may, on application by an R&D entity, register the R&D entity for R&D activities. This registration is needed before the R&D entity can be entitled to a tax offset (an
R&D tax offset
) under Division 355 of the Income Tax Assessment Act 1997 for the R&D activities.
• The R&D entity can seek an advance finding to get early notice about whether an activity is considered to be an R&D activity.
• The R&D entity can seek a finding that an activity cannot be conducted in Australia. The finding is needed before expenditure incurred on the activity can count towards an R&D tax offset.
• The Board may register entities as research service providers capable of providing research services to R&D entities.
• Internal and external review can be sought for certain decisions under this Part.
• The Board may make general determinations about how it will exercise its powers, and perform its functions and duties, under this Part. The Board must act in accordance with such a determination.
History
S 26A amended by No 92 of 2020, s 3 and Sch 6 item 4, by inserting "• The Board may make general determinations about how it will exercise its powers, and perform its functions and duties, under this Part. The Board must act in accordance with such a determination." at the end, applicable in relation to the exercise of powers, and the performance of functions and duties, by the Board after 1 January 2021.
S 26A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 2 - Registering for the R&D tax offset
History
Div 2 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision A - Introduction
History
Subdiv A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27
27
SIMPLIFIED OUTLINE
The following is a simplified outline of this Division:
• The Board may register an R&D entity for R&D activities conducted during an income year.
• The Board may make findings about the nature of an R&D entity's activities both before and after registration.
• These findings bind the Commissioner for the purposes of any entitlement of the R&D entity to a tax offset underDivision 355 of the Income Tax Assessment Act 1997 for the activities.
• The Board will register an R&D entity's activities consistently with any findings made about the entity's application. Any findings made about these activities after registration will, if necessary, automatically vary the entity's registration.
• Registrations can also be varied and revoked.
History
S 27 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 27 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
Former s 27 amended by No 59 of 1988.
Subdivision B - Registering R&D entities for R&D activities
History
Subdiv B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27A
REGISTERING R&D ENTITIES FOR R&D ACTIVITIES
27A(1)
The Board must, on application by an R&D entity, decide whether to register or refuse to register the entity for either or both of the following for an income year:
(a)
one or more specified activities as core R&D activities conducted during the income year;
(b)
one or more specified activities as supporting R&D activities conducted during the income year;
Note 1:
A decision under this subsection is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 27D.
27A(2)
If the Board decides under subsection (1) to register the R&D entity, the Board must do so consistently with:
(a)
any findings already in force under subsection
27B(1) in relation to the application; and
(b)
any findings already in force under subsection
28A(1) (advance findings about the nature of activities) in relation to the R&D entity.
27A(3)
For each activity registered under subsection (1) as a supporting R&D activity for an R&D entity for an income year, the registration is to also specify:
(a)
one or more activities as the corresponding core R&D activities; and
(b)
if any of those activities specified as a core R&D activity is not registered under paragraph (1)(a) for the R&D entity for the income year - each income year for which that core R&D activity:
(i)
was registered under paragraph (1)(a) for theR&D entity; or
(ii)
is proposed to be registered under paragraph (1)(a) for the R&D entity.
[
CCH Note:
No 93 of 2011, s 3 and Sch 4 Pt 4 items 16 to 18 contain the following savings and transitional provisions:
Part 4 - Other savings and transitional provisions
16 R&D activities registered under the old law
16
A reference in each of the following provisions of the Industry Research and Development Act 1986 (as amended by this Act) to a registration under section 27A of that Act includes a reference to a registration under former section 39J of that Act:
(a)
subparagraph 27A(3)(b)(i);
(b)
subparagraph 27B(1)(c)(ii);
(c)
subparagraph 27J(1)(c)(ii);
(d)
paragraph 28A(1)(b);
(e)
paragraph 28D(2)(b).
Note:
For each of these provisions, the R&D activity registered under former section 39J will need to be a core R&D activity within the meaning of the amendments made by this Act.
17 Australian research agencies registered under the old law
(1)
This item applies to an entity registered, immediately before the commencement of this item, under section 39F of the Industry Research and Development Act 1986 as an Australian research agency in respect of one or more classes (the
research classes
) of Australian research and development activities.
(2)
The entity is taken, immediately after the commencement of this item, to be registered under section 29A of that Act as a research service provider qualified to provide services in research fields corresponding to those research classes.
18 Regulations
(1)
The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
The Governor-General may make regulations dealing with matters of a transitional, savings or application nature relating to the repeals and amendments made by this Act.
]
History
S 27A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27B
FINDINGS ABOUT APPLICATIONS FOR REGISTRATION
27B(1)
The Board may make one or more findings to the following effect when considering an R&D entity's application for the purposes of subsection
27A(1):
(a)
that all or part of an activity mentioned in the application was a core R&D activity conducted during the income year;
(b)
that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (a);
(c)
that all or part of an activity mentioned in the application was a supporting R&D activity conducted:
(i)
during the income year; and
(ii)
in relation to one or more specified core R&D activities for which the entity has been or could be registered under section 27A for an income year;
[
CCH Note:
For savings and transitional provisions see note under s 27A(3).]
(d)
that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (c).
Note 1:
A finding is reviewable (see Division 5).
Note 2:
The Board could make a finding under paragraph (b) if, for example, the Board has insufficient information to make a finding under paragraph (a). Similarly, the Board could make a finding under paragraph (d) if it has insufficient information to make a finding under paragraph (c).
Note 3:
The Board may also make findings after registration (see subsection 27J(1)).
27B(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's application, the Board may specify in the finding the times to which the finding relates.
Example:
A finding under paragraph (1)(a) could specify the times during the income year that an activity was a core R&D activity.
27B(3)
This section has effect subject to section
32B (findings cannot be inconsistent with any earlier findings).
History
S 27B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27C
NOTICE OF DECISION ABOUT REGISTRATION
27C(1)
The Board must notify an applicant in writing of the Board's decision under subsection
27A(1) about the application.
27C(2)
The notice must include a certificate for each finding (if any) made under subsection
27B(1) for the application. The certificate must set out:
(a)
a description of the finding; and
(b)
the Board's reasons for the finding; and
(c)
the activity affected by the finding; and
(d)
the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
27C(3)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
27C(4)
A failure to comply with this section does not affect the validity of the decision or finding.
History
S 27C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision C - Applying to register R&D activities
History
Subdiv C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27D
27D
APPLYING TO REGISTER R&D ACTIVITIES
An application to register activities under section
27A for an income year must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section; and
(c)
made within:
(i)
10 months after the end of the income year; or
(ii)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32 deals with approved forms.
Note 3:
Section 32A deals with the decision-making principles.
History
S 27D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27E
BOARD MAY REQUEST FURTHER INFORMATION
27E(1)
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
27E(2)
The request may be for the information or kinds of information to be given within:
(a)
30 days after the request was made; or
(b)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a finding under paragraph 27B(1)(b) or (d).
27E(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
27E(4)
Subsections (2) and (3) do not limit subsection (1).
History
S 27E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision D - Examining registrations
History
Subdiv D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27F
EXAMINING A REGISTRATION
27F(1)
The Board may conduct one or more examinations of all or part of an R&D entity's registration under section
27A for an income year for the purposes of making one or more findings under subsection
27J(1).
Note:
A finding under subsection 27J(1) will support the entity's registration, or cause the variation of that registration.
27F(2)
The Board may examine an R&D entity's registration on its own initiative.
27F(3)
The Board must examine an R&D entity's registration if:
(a)
requested by the Commissioner; or
(b)
the R&D entity has applied for one or more findings under subsection
27J(1) about the registration.
Note:
A finding under subsection 27J(1) can only bind the Commissioner for the purposes of the R&D entity's income tax assessment for the income year if the finding is made within 4 years after the end of the income year (see subsection 355-705(1) of the Income Tax Assessment Act 1997).
27F(4)
If the R&D entity applies for a finding under subsection
27J(1) about the registration, the Board must:
(a)
make one or more findings under subsection
27J(1) about the registration; or
(b)
if justified in accordance with the decision-making principles - refuse to make a finding under subsection
27J(1) about the registration.
Note 1:
The Board may make a finding that differs from that sought by the R&D entity.
Note 2:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 3:
Section 32A deals with the decision-making principles.
History
S 27F inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27G
27G
APPLYING FOR FINDINGS
An application for one or more findings under subsection
27J(1) must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section.
Note 1:
An application can seek findings for several activities.
Note 2:
Section 32 deals with approved forms.
History
S 27G inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27H
BOARD MAY REQUEST INFORMATION DURING AN EXAMINATION
27H(1)
When examining an R&D entity's registration, the Board may request the entity in writing to give specified information, or specified kinds of information, to the Board about the entity's registration.
27H(2)
The request may be for the information or kinds of information to be given within:
(a)
30 days after the request was made; or
(b)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a finding under paragraph 27J(1)(b) or (d).
27H(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
27H(4)
Subsections (2) and (3) do not limit subsection (1).
History
S 27H inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27J
FINDINGS ABOUT A REGISTRATION
27J(1)
The Board may make one or more findings to the following effect about an R&D entity's registration under section
27A for an income year (the
registration year
):
(a)
that all or part of a registered activity was a core R&D activity conducted during the registration year;
(b)
that all or part of a registered activity was not an activity of a kind covered by paragraph (a);
(c)
that all or part of a registered activity was a supporting R&D activity conducted during the registration year and in relation to:
(i)
one or more specified registered core R&D activities; or
(ii)
one or more specified core R&D activities for which the entity has been registered in an earlier income year; or
[
CCH Note:
For savings and transitional provisions see note under s 27A(3).]
(iii)
one or more specified core R&D activities yet to be conducted for which the entity could be registered in the registration year if those activities were conducted during the registration year; or
(iv)
several specified core R&D activities, each covered by subparagraph (i), (ii) or (iii);
(d)
that all or part of a registered activity was not an activity of a kind covered by paragraph (c).
Note 1:
A finding is reviewable (see Division 5).
Note 2:
The Board could make a finding under paragraph (b) if, for example, the Board has insufficient information to make a finding under paragraph (a). Similarly, the Board could make a finding under paragraph (d) if it has insufficient information to make a finding under paragraph (c).
27J(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's registration, the Board may specify in the finding the times to which the finding relates.
Example:
A finding under paragraph (1)(a) could specify the times during the registration year that a registered activity was a core R&D activity.
27J(3)
This section has effect subject to section
32B (findings cannot be inconsistent with any earlier findings).
History
S 27J inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27K
NOTICE OF FINDINGS OR OF DECISIONS REFUSING TO MAKE FINDINGS
27K(1)
The Board must notify the R&D entity, and the Commissioner, in writing of any findings under subsection
27J(1) about the entity's registration under section
27A.
27K(2)
The notice must include a certificate for each finding. The certificate must set out:
(a)
a description of the finding; and
(b)
the Board's reasons for the finding; and
(c)
the registered activity affected by the finding; and
(d)
the effect of the finding on the entity's registration; and
(e)
the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note 1:
For the effect of the finding of the entity's registration, see section 27L (about automatic variations to registrations).
Note 2:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
27K(3)
The Board must notify the R&D entity in writing of any decision under paragraph
27F(4)(b) refusing to make a finding under subsection
27J(1) in response to an application under section
27G by the R&D entity.
27K(4)
A failure to comply with this section does not affect the validity of a finding or decision.
History
S 27K inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27L
AUTOMATIC VARIATIONS SO REGISTRATION IS CONSISTENT WITH FINDINGS
27L(1)
If an R&D entity is registered under section
27A for an income year, then while a finding is in force:
(a)
under subsection
27B(1) in relation to the application for the registration; or
(b)
under subsection
27J(1) in relation to the registration;
the registration is taken always to have existed in a form consistent with the finding.
Note 1:
This subsection will cease to apply if the finding is set aside on review (see Division 5).
Note 2:
A finding has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity (see section 32B).
27L(2)
If:
(a)
a finding under subsection
28A(1) (advance findings about the nature of activities) comes into force for an R&D entity about an activity conducted during an income year; and
(b)
the R&D entity is later registered under section
27A for the activity for the income year;
then, after registration and while the finding is in force, the registration is taken to exist in a form consistent with the finding.
Note 1:
This subsection will cease to apply if the finding is set aside on review (see Division 5).
Note 2:
A finding has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity (see section 32B).
27L(3)
This section has effect for the purposes of this Act and the
Income Tax Assessment Act 1997.
History
S 27L inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27M
VARYING REGISTRATIONS ON APPLICATION
27M(1)
The Board may, by notice in writing given to an R&D entity, vary the entity's registration under section
27A for an income year if:
(a)
the entity applies for the variation; and
(b)
the variation is consistent with the Board's findings (if any) in force under this Part in relation to the R&D entity; and
(c)
making the variation is justified in accordance with the decision-making principles.
Note 1:
A decision not to vary is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
27M(2)
An application for a variation must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
27M(3)
Section
27E applies to an application under this section in a way corresponding to the way that section applies to an application under section
27D.
Note:
This means the Board may request further information about the application for variation.
27M(4)
For the purposes of this Act and the
Income Tax Assessment Act 1997, the effect of a variation is that the entity's registration under section
27A for the income year is taken always to have existed as varied.
History
S 27M inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 27N
REVOKING REGISTRATIONS
27N(1)
The Board may, by notice in writing given to an entity, revoke the entity's registration under section
27A for an income year if the Board is satisfied that the entity was not an R&D entity at any time when an activity covered by the registration was conducted during the income year.
Note:
A decision to revoke under this subsection is reviewable (see Division 5).
27N(2)
The Board may, by notice in writing given to an R&D entity, revoke the entity's registration under section
27A for an income year if the entity requests the Board to do so.
27N(3)
A request for a revocation under subsection (2) must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
27N(4)
For the purposes of this Act, and the
Income Tax Assessment Act 1997, the effect of a revocation under this section is that the entity is taken never to have been registered under section
27A for the income year.
Note:
This subsection will cease to apply if a revocation under subsection (1) is set aside on review (see Division 5).
27N(5)
The Board must notify the Commissioner of a revocation under this section.
History
S 27N inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 3 - Other findings
History
Div 3 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision A - Introduction
History
Subdiv A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28
28
SIMPLIFIED OUTLINE
The following is a simplified outline of this Division:
• An R&D entity can seek a finding (an
advance finding
) about whether an activity is an R&D activity.
• An advance finding binds the Commissioner for the purpose of working out tax offsets (
R&D tax offsets
) under Division 355 of the Income Tax Assessment Act 1997.
• An R&D entity can seek a finding that an activity cannot be conducted in Australia.
• An R&D tax offset will only be available for expenditure incurred on an activity conducted outside Australia if a finding that the activity cannot be conducted in Australia has come into force.
• The Board may also make a finding about whether particular technology is core technology for R&D activities.
• An effect of a finding that the technology is core technology for the R&D activities is that an R&D tax offset will not be available for expenditure incurred in acquiring, or in acquiring the rights to use, the technology for the R&D activities.
History
S 28 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 28 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
Former s 28 amended by No 66 of 1991, No 58 of 1994 and No 84 of 1995.
Subdivision B - Advance findings about the nature of activities
History
Subdiv B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28A
ADVANCE FINDINGS ABOUT THE NATURE OF ACTIVITIES
28A(1)
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a)
find that all or part of the activity is a core R&D activity;
(b)
find that all or part of the activity is a supporting R&D activity in relation to one or more specified core R&D activities for which the entity has been or could be registered under section
27A for an income year;
[
CCH Note:
For savings and transitional provisions see note under s 27A(3).]
(c)
make a finding to the effect that all or part of the activity is neither:
(i)
a core R&D activity; nor
(ii)
a supporting R&D activity of a kind covered by paragraph (b);
(d)
if justified in accordance with the decision-making principles - refuse to make a finding about all or part of the activity.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 28G.
Note 3:
A finding binds the Commissioner for the purposes of income tax assessments for certain income years (see subsections 55-705(2) and (3) of the Income Tax Assessment Act 1997).
Note 4:
Section 32A deals with the decision-making principles.
28A(2)
The Board must not make a finding under subsection (1) about an activity unless the Board is satisfied that the activity:
(a)
is being conducted, or has been completed, during the income year in which the application is made; or
(b)
is yet to be conducted, but that it is reasonable to expect that the activity will be conducted in any or all of the following income years:
(i)
the income year in which the application is made;
(ii)
either of the next 2 income years.
28A(3)
If the Board makes a finding under subsection (1) about an activity that is being conducted, or has been completed, during the income year in which the application is made, the Board may specify in the finding the times to which the finding relates.
28A(4)
This section has effect subject to section
32B (findings cannot be inconsistent with any earlier findings).
History
S 28A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28B
APPLICATIONS MADE ON BEHALF OF R&D ENTITIES
28B(1)
An application for a finding under subsection
28A(1) may be made on behalf of an R&D entity by an entity who:
(a)
is specified in regulations made for the purposes of this subsection; and
(b)
is acting with the R&D entity's written consent.
The application is taken to be made by the R&D entity.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
History
S 28B(1) amended by No 126 of 2015, s 3 and Sch 1 item 304, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003" in the note, effective 5 March 2016.
28B(2)
If:
(a)
an entity could, under subsection (1), make an application on behalf of more than one R&D entity for the same finding for the same activity; and
(b)
the entity applies (the
joint application
) under subsection
28G(2) for the finding on behalf of those R&D entities;
the joint application is taken to be a separate application under subsection 28G(1) for the finding by each of those R&D entities.
History
S 28B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision C - Findings about activities to be conducted outside Australia
History
Subdiv C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28C
FINDINGS ABOUT ACTIVITIES TO BE CONDUCTED OUTSIDE AUSTRALIA
28C(1)
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a)
find that all or part of the activity is an activity (the
overseas activity
) that meets the conditions in section
28D;
(b)
find that all or part of the activity is not an activity that meets the conditions in section
28D;
(c)
if justified in accordance with the decision-making principles - refuse to make a finding about all or part of the activity.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 28G.
Note 3:
An effect of a finding under paragraph (a) is that a tax offset may be available for expenditure incurred on the overseas activity after the finding comes into force (see Division 355 of the Income Tax Assessment Act 1997, in particular paragraphs 355-210(1)(d) and (e) of that Act).
Note 4:
Section 32A deals with the decision-making principles.
28C(2)
For the purposes of this Act and the
Income Tax Assessment Act 1997, a finding under subsection (1) comes into force at the start of the income year in which the application for the finding is made.
28C(3)
This section has effect subject to section
32B (findings cannot be inconsistent with any earlier findings).
History
S 28C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28D
CONDITIONS FOR A FINDING THAT AN OVERSEAS ACTIVITY CANNOT BE CONDUCTED IN AUSTRALIA ETC.
Must be an R&D activity
28D(1)
The first condition is that the overseas activity is covered by a finding under paragraph
28A(1)(a) or (b) (findings that activities are R&D activities).
Must have significant scientific link to Australian core activities
28D(2)
The second condition is that the overseas activity has a significant scientific link to one or more core R&D activities (the
Australian core activities
):
(a)
that are conducted or to be conducted solely within Australia; and
(b)
that:
(i)
are registered under section 27A for the R&D entity for an income year; or
(ii)
are reasonably likely to be conducted and be registered under section 27A for the R&D entity for an income year.
[
CCH Note:
For savings and transitional provisions see note under s 27A(3).]
History
S 28D(2) amended by No 33 of 2016, s 3 and Sch 5 item 71, by omitting "or an external Territory" after "Australia" from para (a), effective 1 July 2016.
28D(3)
The overseas activity has a
significant scientific link
to the Australian core activities if:
(a)
the Australian core activities cannot be completed without the overseas activity being conducted; and
(b)
the conditions (if any) specified in regulations made for the purposes of this subsection are met.
Must be unable to be conducted within Australia etc.
28D(4)
The third condition is that the overseas activity cannot be conducted solely in Australia because:
(a)
conducting it requires access to a facility, expertise or equipment not available in Australia; or
(b)
conducting it in Australia would contravene the
Biosecurity Act 2015 or a law relating to quarantine; or
(c)
conducting it requires access to a population (of living things) not available in Australia; or
(d)
conducting it requires access to a geographical or geological feature not available in Australia; or
(e)
it meets a condition (if any) specified in regulations made for the purposes of this subsection.
History
S 28D(4) amended by No 33 of 2016, s 3 and Sch 5 item 72, by omitting "or the external Territories" (wherever occurring), effective 1 July 2016.
S 28D(4) amended by No 62 of 2015, s 3 and Sch 2 item 27, by inserting "the Biosecurity Act 2015 or" in para (b), effective 16 June 2016.
Expenditure must be less than that incurred on Australian core activities
28D(5)
The fourth condition is that the total actual and reasonably anticipated expenditure of any entity in all income years on:
(a)
the overseas activity; and
(b)
each other activity (if any) conducted wholly or partly outside Australia that has a significant scientific link to the Australian core activities;
is less than the total actual and reasonably anticipated expenditure of any entity in all income years on:
(c)
the Australian core activities; and
(d)
activities conducted solely within Australia that are supporting R&D activities in relation to the Australian core activities.
History
S 28D(5) amended by No 33 of 2016, s 3 and Sch 5 item 73, by omitting "and the external Territories" after "Australia" from para (b) and (d), effective 1 July 2016.
History
S 28D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision D - Findings about whether technology is core technology
History
Subdiv D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28E
FINDINGS ABOUT WHETHER TECHNOLOGY IS CORE TECHNOLOGY
28E(1)
If an R&D entity has acquired, or has acquired the right to use, particular technology wholly or partly for the purposes of one or more R&D activities conducted, or to be conducted, during one or more income years, the Board may:
(a)
find that the technology is core technology for the R&D activities; or
(b)
find that the technology is not core technology for the R&D activities; or
(c)
if justified in accordance with the decision-making principles - refuse to make a finding about the technology and the R&D activities.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
A finding under paragraph (a) means that a tax offset will not be available for expenditure incurred in acquiring, or in acquiring the right to use, the technology for the R&D activities (see subsection 355-225(2) of the Income Tax Assessment Act 1997).
Note 3:
Section 32A deals with the decision-making principles.
28E(2)
Particular technology is
core technology
for one or more R&D activities if:
(a)
a purpose of the R&D activities was or is:
(i)
to obtain new knowledge based on that technology; or
(ii)
to create new or improved materials, products, devices, processes, techniques or services to be based on that technology; or
(b)
the R&D activities were or are an extension, continuation, development or completion of the activities that produced that technology.
28E(3)
The Board must make a finding under paragraph (1)(a) or (b) if requested by the Commissioner to make a finding under this section.
28E(4)
In addition to subsection (3), the Board:
(a)
may make a finding under subsection (1) on its own initiative; and
(b)
must make a decision under subsection (1) if the R&D entity applies for a finding under this section.
Note:
For requirements of applications, see section 28G.
28E(5)
This section has effect subject to section
32B (findings cannot be inconsistent with any earlier findings).
History
S 28E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision E - Matters relevant to findings under this Division
History
Subdiv E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28F
NOTICE OF DECISION ABOUT FINDINGS
28F(1)
The Board must notify an applicant in writing of each of the Board's decisions under subsection
28A(1) or
28C(1) about the application.
28F(2)
The Board must notify an R&D entity in writing of each of the Board's decisions under subsection
28E(1) that relates to the R&D entity.
28F(3)
A notice under subsection (1) or (2) must include a certificate for each finding (if any) to which the decision relates. The certificate must set out:
(a)
a description of the finding; and
(b)
the Board's reasons for the finding; and
(c)
a description of the activity affected by the finding; and
(d)
for a finding under subsection
28E(1) - a description of the technology affected by the finding; and
(e)
the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
28F(4)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
28F(5)
A failure to comply with this section does not affect the validity of a decision or finding.
History
S 28F inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28G
APPLYING FOR FINDINGS
Applications for findings
28G(1)
An application for one or more findings under this Division must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this subsection.
Note 1:
An application can seek findings for several activities.
Note 2:
Section 32 deals with approved forms.
Joint applications for identical advance findings
28G(2)
An application for identical findings under subsection
28A(1) on behalf of several R&D entities must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this subsection.
Note:
The application is taken to be a separate application under subsection (1) of this section for the finding by each of those R&D entities (see subsection 28B(2)).
History
S 28G inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 28H
BOARD MAY REQUEST FURTHER INFORMATION
28H(1)
The Board may request in writing:
(a)
for an application taken to be made by an R&D entity because of section 28B - the entity that acted on behalf of the R&D entity in relation to the application; or
(b)
otherwise - the applicant;
to give specified information, or specified kinds of information, to the Board about the application.
28H(2)
The request may be for the information or kinds of information to be given within:
(a)
30 days after the request was made; or
(b)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a refusal to make the finding.
28H(3)
The request may be for the information or kinds of information to be given in the approved form:
Note:
Section 32 deals with approved forms.
28H(4)
Subsections (2) and (3) do not limit subsection (1).
History
S 28H inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 4 - Research service providers
History
Div 4 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision A - Introduction
History
Subdiv A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29
29
SIMPLIFIED OUTLINE
The following is a simplified outline of this Division:
• The Board may register entities as research service providers capable of providing research services to R&D entities.
• Near the end of each financial year, registered research service providers will be asked if they want their registrations to continue for the next financial year.
• Registrations can be varied and revoked.
• Details of registrations are set out in a register available on the internet.
History
S 29 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 29 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
Subdivision B - Registering research service providers
History
Subdiv B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29A
REGISTERING RESEARCH SERVICE PROVIDERS
29A(1)
The Board must, on application by an entity, decide whether to register or refuse to register the entity as a research service provider capable of providing services in one or more specified research fields to R&D entities registered under section
27A.
Note:
A decision under this subsection is reviewable (see Division 5).
29A(2)
The Board must not register the entity under subsection (1) unless the Board is satisfied that the entity meets the criteria specified in regulations made for the purposes of this subsection.
29A(3)
A registration under this section is subject to the conditions (if any) specified in regulations made for the purposes of this subsection.
History
S 29A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision C - Applying for registration
History
Subdiv C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29B
29B
APPLYING FOR REGISTRATION
An application to be registered under section
29A must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
History
S 29B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29C
BOARD MAY REQUEST FURTHER INFORMATION ABOUT AN APPLICATION
29C(1)
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
29C(2)
The request may be for the information or kinds of information to be given within 30 days after the request was made.
29C(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
29C(4)
Subsections (2) and (3) do not limit subsection (1).
29C(5)
The Board may refuse to consider the application if the applicant fails to give the information within:
(a)
the 30 days referred to in subsection (2); or
(b)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
History
S 29C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29D
BOARD MAY NEED TO MAKE INQUIRIES ABOUT AN APPLICATION
29D(1)
The Board may notify the applicant in writing that the Board:
(a)
needs to make inquiries in order to determine whether the applicant meets the criteria for registration referred to in subsection
29A(2); and
(b)
requires the applicant to pay the Board a specified amount towards the cost of those inquiries.
29D(2)
The Board may refuse to consider the application until the applicant pays the Board that amount.
29D(3)
An amount specified in a notice under subsection (1) must not exceed the higher of:
(a)
$1,000; and
(b)
the amount (if any) specified in regulations made for the purposes of this subsection;
and must not be such as to amount to taxation.
History
S 29D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision D - Varying or revoking registrations
History
Subdiv D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29E
DURATION OF REGISTRATIONS
29E(1)
At least 2 months before the end of each financial year, the Board must give each research service provider a notice:
(a)
asking the provider if it wishes to continue to be registered under section
29A; and
(b)
attaching an approved form to be completed by the provider and returned to the Board if the provider wishes to continue to be registered.
This subsection does not apply to a provider who becomes registered under section 29A in May or June of that financial year.
Note:
Section 32 deals with approved forms.
29E(2)
The Board may, by notice in writing given to the provider, revoke the provider's registration under section
29A if the provider does not return the completed form within:
(a)
30 days after the notice under subsection (1) was given; or
(b)
a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A decision to revoke under this subsection is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
29E(3)
For the purposes of this Act and the
Income Tax Assessment Act 1997, the revocation takes effect at the end of that financial year.
Note:
This subsection will cease to apply if the revocation is set aside on review (see Division 5).
History
S 29E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29F
VARYING REGISTRATIONS - ON APPLICATION
29F(1)
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section
29A if:
(a)
the provider applies for the variation; and
(b)
the Board is satisfied that the provider would still meet the criteria for registration referred to in subsection
29A(2) were the application to be successful.
Note:
A refusal to vary is reviewable (see Division 5).
29F(2)
An application for a variation must be:
(a)
in the approved form; and
(b)
accompanied by the fee (if any) specified in regulations made under section
48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
29F(3)
Sections
29C and
29D apply to applications under this section in a way corresponding to the way those sections apply to applications under section
29B.
Note:
This means the Board may request further information about the application for variation, and make inquiries about the application for variation.
History
S 29F inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29G
VARYING REGISTRATIONS - OTHERWISE THAN ON APPLICATION
29G(1)
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section
29A so that the provider ceases to be registered to provide services in one or more specified research fields.
Note 1:
A decision to vary is reviewable (see Division 5).
Note 2:
This subsection will cease to apply if the variation is set aside on review (see Division 5).
29G(2)
The Board may do so if the Board is satisfied that the provider does not meet the criteria for registration referred to in subsection
29A(2) in so far as those criteria relate to those research fields.
History
S 29G inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29H
REVOKING REGISTRATIONS
29H(1)
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section
29A if the Board is satisfied:
(a)
that the provider has ceased to meet the criteria for registration referred to in subsection
29A(2); or
(b)
that the provider has breached a condition, referred to in subsection
29A(3), of the registration.
Note 1:
A decision to revoke under this subsection is reviewable (see Division 5).
Note 2:
This subsection will cease to apply if the revocation is set aside on review (see Division 5).
Note 3:
Revocation can also happen under subsection 29E(2) if the provider does not appropriately indicate that it wishes to continue to be registered for the next financial year.
29H(2)
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section
29A if the provider requests the Board to do so.
29H(3)
A request for a revocation under subsection (2) must be in the approved form.
Note:
Section 32 deals with approved forms.
History
S 29H inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Subdivision E - Register of research service providers
History
Subdiv E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 29J
REGISTER OF RESEARCH SERVICE PROVIDERS
29J(1)
The Board is to make available for inspection on the internet a register that includes details of:
(a)
registrations in force under this Division; and
(b)
registrations that have been revoked under this Division during the current financial year or the previous financial year.
Note 1:
A registration in force under this Division includes the research fields for which the provider is registered.
Note 2:
A registration in force under this Division is that registration as varied under section 29F or 29G.
29J(2)
The register is not a legislative instrument.
History
S 29J inserted by No 93of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 5 - Review
History
Div 5 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 30
30
SIMPLIFIED OUTLINE
The following is a simplified outline of this Division:
• An entity affected by a reviewable decision may ask the Board to conduct an internal review of that decision.
• The entity, or another entity affected by the resulting internal review decision, may ask the Administrative Appeals Tribunal to review the internal review decision.
[
CCH Note:
S 30 will be amended by No 39 of 2024, s 3 and Sch 11 item 9, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 30 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 30 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
SECTION 30A
30A
REVIEWABLE DECISIONS
Each of the following decisions of the Board is a
reviewable decision
.
|
Reviewable decisions
|
|
Item
|
Decision
|
Provision under which decision is made
|
| 1 |
Registering or refusing to register an entity for activities |
Subsection 27A(1) |
| 2 |
A finding made when considering an application for registration of activities |
Subsection 27B(1) |
| 3 |
Refusing to allow a further period for making an application for registration of activities |
Paragraph 27D(c) |
| 4 |
Refusing to allow a further period for giving further information about an application for registration of activities |
Paragraph 27E(2)(b) |
| 5 |
Refusing to make a finding about a registration of activities |
Paragraph 27F(4)(b) |
| 6 |
Refusing to allow a further period for giving further information about an examination of a registration of activities |
Paragraph 27H(2)(b) |
| 7 |
A finding made about a registration of activities |
Subsection 27J(1) |
| 8 |
Refusing to vary on application a registration of activities |
Subsection 27M(1) |
| 9 |
Refusing to allow a further period for giving further information about an application for variation of a registration of activities |
Paragraph 27E(2)(b), as that paragraph applies because of subsection 27M(3) |
| 10 |
Revoking a registration of activities |
Subsection 27N(1) |
| 11 |
An advance finding, or refusing to make an advance finding, about the nature of an activity |
Subsection 28A(1) |
| 12 |
A finding, or refusing to make a finding, about an activity to be conducted outside Australia |
Subsection 28C(1) |
| 13 |
A finding, or refusing to make a finding, about particular technology |
Subsection 28E(1) |
| 14 |
Refusing to allow a further period for giving further information about an application for:
(a) an advance finding about the nature of an activity; or
(b) a finding about an activity to be conducted outside Australia; or
(c) a finding that technology is core technology |
Paragraph 28H(2)(b) |
| 15 |
Registering or refusing to register an entity as a research service provider |
Subsection 29A(1) |
| 16 |
Refusing to allow a further period for giving further information about an application for registration as a research service provider |
Subsection 29C(3) |
| 17 |
Revoking a research service provider's registration for not returning a completed form about continuing that registration |
Subsection 29E(2) |
| 18 |
Refusing to vary on application a research service provider's registration |
Subsection 29F(1) |
| 19 |
Refusing to allow a further period for giving further information about an application for variation of a research service provider's registration |
Subsection 29C(3), as that subsection applies because of subsection 29F(3) |
| 20 |
Varying a research service provider's registration otherwise than on application |
Subsection 29G(1) |
| 21 |
Revoking a research service provider's registration |
Subsection 29H(1) |
| 22 |
Refusing to allow a further period for making an application for review of a decision |
Subsection 30C(3) |
History
S 30A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 30B
NOTICE OF REVIEWABLE DECISION AND INTERNAL REVIEW RIGHTS
30B(1)
When making a reviewable decision relating to an entity, the Board must give written notice to the entity of the following things:
(a)
the making of the decision;
(b)
the reasons for the decision;
(c)
the entity's right to have the decision reviewed under this Division.
30B(2)
If written notice of any of these things is given to the entity under another provision of this Part, notice of the thing does not have to be given twice.
Note:
Other provisions of this Part require notice to be given about decisions covered by item 2, 7 or 11 of the table in section 30A.
30B(3)
A failure to comply with this section does not affect the validity of the decision.
History
S 30B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 30C
APPLICATIONS FOR INTERNAL REVIEW OF REVIEWABLE DECISIONS
Applications by affected entities
30C(1)
An application for review of a reviewable decision may be made by or on behalf of any entity whose interests are affected by the reviewable decision.
30C(2)
An application under subsection (1) must be in the approved form.
Note:
Section 32 deals with approved forms.
30C(3)
An application under subsection (1) for review of a reviewable decision must be made within:
(a)
28 days after the entity to which the decision relates is notified of the decision under this Part; or
(b)
such further period as the Board allows in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see section 30A).
Note 2:
Section 32A deals with the decision-making principles.
Applications by Commissioner
30C(4)
The Commissioner may, at any time, apply to the Board for review of a reviewable decision.
History
S 30C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 30D
INTERNAL REVIEW OF REVIEWABLE DECISIONS
30D(1)
After receiving an application for review of a reviewable decision, the Board must review the decision.
Making internal review decisions
30D(2)
After reviewing the reviewable decision, the Board must make a decision (an
internal review decision
):
(a)
confirming the reviewable decision; or
(b)
varying the reviewable decision; or
(c)
setting aside the reviewable decision and substituting a new decision.
Note:
An internal review decision is reviewable by the Administrative Appeals Tribunal (see section 30E). Under the Administrative Appeals Tribunal Act 1975, notice of the internal review decision must be given to any person whose interests are affected by the decision.
[
CCH Note:
S 30D(2) will be amended by No 39 of 2024, s 3 and Sch 11 item 10, by substituting "Administrative Review Tribunal (see section 30E). Under the Administrative Review Tribunal Act 2024" for "Administrative Appeals Tribunal (see section 30E). Under the Administrative Appeals Tribunal Act 1975" in the note, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Deemed internal review decisions
30D(3)
If the Board does not make a decision under subsection
(2) before the end of the period of 90 days after the day on which the Board received the application for review, the Board is taken, at the end of that period, to have made a decision (also an
internal review decision
) confirming the reviewable decision.
Note:
Under the Administrative Appeals Tribunal Act 1975, notice must be given to any person whose interests are affected by the internal review decision taken to be made under this subsection.
[
CCH Note:
S 30D(3) will be amended by No 39 of 2024, s 3 and Sch 11 item 11, by repealing the note, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
30D(4)
However, an internal review decision (the
deemed decision
) is taken not to have been made under subsection
(3) if:
(a)
after the end of the period referred to in that subsection, the Board makes a decision under subsection
(2) about the applicable reviewable decision; and
(b)
an application has yet to be made under section
30E to the Administrative Appeals Tribunal for review of the deemed decision.
[
CCH Note:
S 30D(4) will be amended by No 39 of 2024, s 3 and Sch 11 item 12, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
Matters relevant to all internal review decisions
30D(5)
For the purposes of this Act and the
Income Tax Assessment Act 1997, an internal review decision takes effect on the day on which the reviewable decision took effect.
30D(6)
The Board must notify the Commissioner in writing of:
(a)
the making of an internal review decision; and
(b)
the reasons for that decision.
History
S 30D inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 30E
EXTERNAL REVIEW BY AAT OF INTERNAL REVIEW DECISIONS
[
CCH Note:
S 30E heading will be amended by No 39 of 2024, s 3 and Sch 11 item 13, by substituting "
Administrative Review Tribunal
" for "
AAT
", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
30E(1)
Application may be made to the Administrative Appeals Tribunal for review of an internal review decision of the Board.
[
CCH Note:
S 30E(1) will be amended by No 39 of 2024, s 3 and Sch 11 item 14, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal", effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
30E(2)
Subsection
43(6) of the
Administrative Appeals Tribunal Act 1975 has effect for the purposes of this Act and the
Income Tax Assessment Act 1997 for:
(a)
an internal review decision as varied by the Tribunal under section
43 of the
Administrative Appeals Tribunal Act 1975; or
(b)
a decision made by the Tribunal under that section in substitution for an internal review decision.
Note:
This means that the varied or substituted decision takes effect from the day on which the reviewable decision took effect (see subsection 30D(5)).
[
CCH Note:
S 30E(2) will be amended by No 39 of 2024, s 3 and Sch 11 items 15 and 16, by substituting "Subsections 108(2) and (4) of the Administrative Review Tribunal Act 2024 have" for "Subsection 43(6) of the Administrative Appeals Tribunal Act 1975 has" and "section 105 of the Administrative Review Tribunal Act 2024" for "section 43 of the Administrative Appeals Tribunal Act 1975" in para (a), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
30E(3)
If an internal review decision is taken to be made under subsection
30D(3), section
29 of the
Administrative Appeals Tribunal Act 1975 applies as if:
(a)
paragraph
29(1)(d) of that Act applied to the internal review decision; and
(b)
the prescribed time for the purposes of that paragraph were the end of the period of 28 days starting on the day on which the internal review decision is taken to be made.
[
CCH Note:
S 30E(3) will be substituted by No 39 of 2024, s 3 and Sch 11 item 17, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. S 30E(3) will read:
30E(3)
If an internal review decision is taken to be made under subsection 30D(3), then, despite section 18 (when to apply - general rule) of the Administrative Review Tribunal Act 2024, an application to the Administrative Review Tribunal must be made within the period:
(a)
beginning on the day on which the decision is taken to be made; and
(b)
ending 28 days after the day on which the decision is taken to be made.
]
30E(4)
Despite section
35 of the
Administrative Appeals Tribunal Act 1975:
(a)
hearings of proceedings for review of an internal review decision are to be held in private; and
(b)
during the proceedings, the Tribunal may, by order:
(i)
give directions as to the persons who may be present during all or part of a hearing of the proceedings; and
(ii)
give directions of a kind mentioned in subsection 35(3) or (4) of that Act.
[
CCH Note:
S 30E(4) will be repealed by No 39 of 2024, s 3 and Sch 11 item 18, effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
History
S 30E(4) amended by No 60 of 2015, s 3 and Sch 8 item 27, by substituting "subsection 35(3) or (4)" for "paragraph 35(2)(aa), (b) or (c)" in para (b)(ii), effective 1 July 2015.
History
S 30E inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 6 - Consolidated groups and MEC groups
History
Div 6 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 31
REGISTRATIONS AND FINDINGS NOT EFFECTIVE FOR SUBSIDIARY MEMBERS FOR GROUP R&D ACTIVITIES
31(1)
An R&D entity's registration under section
27A for an income year has no effect to the extent that the registration is for an activity conducted during a period that the R&D entity is a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity.
Example:
If an activity is conducted by the R&D entity during all of an income year, and part way through the income year the R&D entity becomes a subsidiary member of a consolidated group:
(a) the R&D entity can apply to be registered for the activity for the income year, and that registration will be effective in respect of the first part of the income year; and
(b) the head company of the group can apply to be registered for the activity for the income year in respect of the second part of the income year.
31(2)
If:
(a)
a finding is made under this Part on application by an R&D entity that is a subsidiary member of a consolidated group or MEC group; and
(b)
the head company of the group is also an R&D entity;
the finding has no effect to the extent that the finding is for an activity conducted during a period that the R&D entity is a subsidiary member of the group.
History
S 31 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 31 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
Former s 31 amended by No 66 of 1991, No 58 of 1994 and No 84 of 1995.
SECTION 31A
WHAT HAPPENS TO FINDINGS IF R&D ENTITY JOINS A GROUP
31A(1)
If a finding (the
actual finding
) under this Part:
(a)
is in force for an R&D entity immediately before the time (the
joining time
) it becomes a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity; and
(b)
is for an activity to be conducted wholly or partly after the joining time;
a corresponding finding (the
deemed finding
) in the same terms is taken to come into force at the joining time for the head company and the activity.
31A(2)
The deemed finding ceases to be in force if the R&D entity ceases to be a subsidiary member of the group.
31A(3)
The result of any review (see Division 5) of an actual finding is taken to apply in a corresponding way to the deemed finding.
31A(4)
Neither section
28F (notice of decision about findings) nor Division
5 (review) applies to the deemed finding.
History
S 31A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 31B
WHAT HAPPENS TO FINDINGS IF R&D ENTITY LEAVES A GROUP
31B(1)
The consequences in subsection (2) apply if a finding (the
group finding
) under this Part:
(a)
is for an R&D entity that is the head company of a consolidated group or MEC group; and
(b)
is in force immediately before the time (the
leaving time
) another R&D entity ceases to be a subsidiary member of the group; and
(c)
is for an activity to be conducted by or for the other R&D entity wholly or partly after the leaving time; and
(d)
is not a deemed finding.
31B(2)
The consequences are as follows:
(a)
a corresponding finding (the
continuing finding
) in the same terms is taken to come into force at the leaving time for the other R&D entity and the activity;
(b)
everything that happened under this Part before the leaving time in relation to the group finding is taken to have happened in relation to the continuing finding;
(c)
the group finding ceases to be in force at the leaving time.
History
S 31B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Division 6A - Determinations about Board's powers, functions and duties under this Part
History
Div 6A inserted by No 92 of 2020, s 3 and Sch 6 item 5, applicable in relation to the exercise of powers, and the performance of functions and duties, by the Board after 1 January 2021.
SECTION 31C
31C
SIMPLIFIED OUTLINE
• The Board may make general determinations about the circumstances or way in which it will exercise its powers, or perform its functions or duties, under this Part.
• The Board must act in accordance with such a determination.
• A determination cannot override the decision-making principles.
History
S 31C inserted by No 92 of 2020, s 3 and Sch 6 item 5, applicable in relation to the exercise of powers, and the performance of functions and duties, by the Board after 1 January 2021.
SECTION 31D
BOARD MAY MAKE A DETERMINATION ABOUT ITS POWERS, FUNCTIONS AND DUTIES
31D(1)
On its own initiative, the Board may, by notifiable instrument, make a determination about the circumstances or way in which the Board will exercise any of its powers, or perform any of its functions or duties, under this Part (except this Division).
31D(2)
The determination must not relate to the exercise of powers, or the performance of functions or duties, in a particular case or in relation to a particular entity.
31D(3)
The Board must exercise its powers, and perform its functions and duties, under this Part (except section
30D and this Division) in accordance with the determination.
Note:
Section 30D is about the Board reviewing a reviewable decision.
31D(4)
The determination has no effect to the extent of any inconsistency with this Act, the regulations or the decision-making principles.
Note:
The Board must revoke or amend the determination to remove any inconsistency: see section 31E.
History
S 31D inserted by No 92 of 2020, s 3 and Sch 6 item 5, applicable in relation to the exercise of powers, and the performance of functions and duties, by the Board after 1 January 2021.
SECTION 31E
WHEN BOARD MUST AMEND OR REVOKE A DETERMINATION
31E(1)
This section applies to a determination made under section
31D if:
(a)
as a result of reviewing under section
30D a reviewable decision that was made in accordance with the determination because of section
31D, the Board is satisfied that the determination is incorrect; or
(b)
the determination is inconsistent with:
(i)
a decision of a court; or
(ii)
a decision of the Administrative Appeals Tribunal on review of an internal review decision relating to a reviewable decision thatwas made in accordance with the determination because of section 31D; or
(iii)
this Act, the regulations or the decision-making principles.
[
CCH Note:
S 31E(1) will be amended by No 39 of 2024, s 3 and Sch 11 item 19, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b)(ii), effective at the same time as the Administrative Review Tribunal Act 2024 commences. However, the provisions do not commence at all if that Act does not commence.]
31E(2)
The Board must, by notifiable instrument, revoke the determination or amend it so it is no longer incorrect or inconsistent.
31E(3)
This section does not limit the application of subsection
33(3) of the
Acts Interpretation Act 1901 in relation to the power to make a determination under section
31D of this Act.
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 provides that a power to make an instrument includes the power to revoke or vary the instrument.
History
S 31E inserted by No 92 of 2020, s 3 and Sch 6 item 5, applicable in relation to the exercise of powers, and the performance of functions and duties, by the Board after 1 January 2021.
Division 7 - Other matters
History
Div 7 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 32
APPROVED FORMS
32(1)
This section applies if a provision of this Part requires a thing to be in the approved form.
32(2)
To be in the approved form for the provision, the thing must:
(a)
be in writing in a form approved by the Board; and
(b)
include the information required by the form; and
(c)
includes any other material (including documents) required by the form.
32(3)
The Board may approve, in writing, a form for the purposes of paragraph (2)(a). When doing so, the Board must ensure the form requires the production of information, or other material (including documents), specified in regulations made for the purposes of this subsection.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
History
S 32(3) amended by No 126 of 2015, s 3 and Sch 1 item 304, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003" in the note, effective 5 March 2016.
History
S 32 inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
Former s 32 repealed by No 15 of 2004, s 3 and Sch 1 item 27, effective 11 September 2004. For transitional provisions and former wordings, see note under Part III heading.
SECTION 32A
32A
DECISION-MAKING PRINCIPLES
The Minister may, by legislative instrument, make principles (the
decision-making principles
) that the Board must comply with when deciding the following:
(a)
whether to allow a thing to be given under this Part within a further period than that specified in this Part;
(b)
whether refusing to make a finding sought under this Part is justified;
(c)
whether making a variation sought under section
27M is justified.
History
S 32A inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 32B
GENERAL RULES ABOUT FINDINGS UNDER THIS PART
32B(1)
A finding made under this Part in relation to an R&D entity has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity.
Example:
A finding under subsection 27J(1) in relation to an R&D entity's registration has no effect to the extent of any inconsistency with:
(a) a finding already in force under that subsection in relation to that registration; or
(b) a finding already in force under subsection 27B(1) in relation to the application for that registration; or
(c) a finding already in force under subsection 28A(1) (advance findings about the nature of activities) in relation to the R&D entity.
32B(2)
Subsection
33(3) of the
Acts Interpretation Act 1901 does not apply to the power to make a finding under this Part.
Note:
This means the power to make a finding does not itself include the power to vary or revoke that finding. A finding can only be varied orrevoked on review under Division 5.
History
S 32B inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
SECTION 32C
ALTERNATIVE CONSTITUTIONAL BASIS
32C(1)
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a)
subsection (2) had not been enacted; and
(b)
each reference in this Part to an R&D entity were, by express provision, confined to an R&D entity that:
(i)
is a constitutional corporation; or
(ii)
has its registered office (within the meaning of the Corporations Act 2001) or principal place of business (within the meaning of that Act) located in a Territory.
32C(2)
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a)
subsection (1) had not been enacted; and
(b)
this Part, by express provision, confined applications, registrations, findings and decisions under this Part to be in relation to activities, or parts of activities, conducted or to be conducted:
(i)
solely in a Territory; or
(ii)
solely outside of Australia; or
(iii)
solely in a Territory and outside of Australia; or
(iv)
for the dominant purpose of supporting core R&D activities conducted, or to be conducted, solely in a Territory.
History
S 32C inserted by No 93 of 2011, s 3 and Sch 2 item 1, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading.
PART IIIA - FUNCTIONS OF BOARD IN RELATION TO INCOME TAX CONCESSIONS
History
Pt IIIA repealed by No 93 of 2011, s 3 and Sch 2 item 34, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. Pt IIIA formerly read:
PART IIIA - FUNCTIONS OF BOARD IN RELATION TO INCOME TAX CONCESSIONS
SECTION 39AA OBJECT OF PART
39AA(1)
The object of this Part is to complement the tax incentive provided by sections 73B, 73BA, 73I, 73QA and 73QB of the Income Tax Assessment Act 1936 by giving the Board the role to determine whether eligible companies satisfy the requirements for the incentive.
History
S 39AA(1) amended by No 164 of 2007, s 3 and Sch 11 item 49, by substituting ", 73QA and 73QB" for "and 73Y", effective 25 September 2007. For application provision see note under s 39D.
39AA(2)
The object of sections 73B, 73BA, 73I, 73QA and 73QB of the Income Tax Assessment Act 1936 is to provide a tax incentive, in the form of a deduction, to encourage research and development activities in Australia and make eligible companies more internationally competitive by:
(a)
encouraging the development by eligible companies of innovative products, processes and services; and
(b)
increasing investment by eligible companies in defined research and development activities; and
(c)
promoting the technological advancement of eligible companies through a focus on innovation and high technical risk in defined research and development activities; and
(d)
encouraging the use by eligible companies of strategic research and development planning; and
(e)
creating an environment that is conducive to increased commercialisation of new processes and product technologies developed by eligible companies.
The benefits of the tax incentive are targeted by being limited to particular expenditure on certain defined activities.
History
S 39AA(2) amended by No 164 of 2007, s 3 and Sch 11 items 49 and 50, by substituting ", 73QA and 73QB" for "and 73Y" and inserting "encourage research and development activities in Australia and" after "deduction, to", effective 25 September 2007. For application provision see note under s 39D.
History
S 39AA inserted by No 170 of 2001, s 3 and Sch 1 item 2, effective 1 October 2001.
SECTION 39A INTERPRETATION
39A(1)
In this Part, unless the contrary intention appears:
commercial government bodies guidelines
means guidelines made under section 39HB.
company
means any body corporate.
dispose of
means dispose of in any way, including by assignment or declaration of trust.
eligible company
means a body corporate incorporated under a law of the Commonwealth or of a State or Territory.
eligible government bodies
means:
(a)
a government body within the meaning of section 73CB of the Income Tax Assessment Act 1936; or
(b)
an associate (within the meaning of that section) of such a government body.
finance
includes debt finance and equity finance.
finance scheme
, in relation to research and development activities carried on, or proposed to be carried on, by or on behalf of an eligible company, means a scheme entered into or carried out by any of the parties to the scheme for the purpose, or for purposes that include the purpose:
(a)
of enabling the company, or an associate of the company, to obtain finance (whether by way of renewal or otherwise) in connection with those activities; or
(b)
of enabling the company, or an associate of the company, to obtain an extension of the period for which finance was obtained in connection with those activities under an earlier scheme.
ineligible finance scheme
means a finance scheme that is taken to be an ineligible finance scheme under the finance scheme guidelines.
register
means:
(a)
in relation to an eligible company:
(i)
register under section 39J; or
(ii)
register jointly with any other eligible company or eligible companies under section 39P; or
(b)
in relation to a research agency - register under section 39F.
Register of Commercial Government Bodies
means the Register of Commercial Government Bodies required by section 39HA.
result
, in relation to research and development activities, means a result that is capable of being exploited.
scheme
means:
(a)
an agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b)
a scheme, plan, proposal, action, course of action or course of conduct.
39A(2)
Subject to subsection (1), expressions used in this Part that are defined by section 73B of the Income Tax Assessment Act 1936 have in this Part, unless the contrary intention appears, the same meanings as in that section.
39A(3)
Subject to subsection (1) and (2), expressions used in this Part that are defined by the Income Tax Assessment Act 1936 (other than section 73B) have in this Part, unless the contrary intention appears, the same meanings as in that Act.
History
S 39A inserted by No 59 of 1988, and amended by No 224 of 1992.
SECTION 39B
SECTION 39B RELATED COMPANIES
39B
For the purposes of this Part, the question whether 2 or more companies are related to each other shall be determined in the same way as that question would be determined for the purposes of the Corporations Act 2001.
History
S 39B amended by No 55 of 2001, s 3 and Sch 3 item 276, by substituting "Corporations Act 2001" for "Corporations Law", effecvtive 15 July 2001.
S 39B amended by No 15 of 1999, s 3 and Sch 1 item 7, by substituting "Corporations Law" for "Companies Act 1981", effective 9 April 1999.
S 39B inserted by No 59 of 1988.
SECTION 39C
SECTION 39C EXPLOITATION OTHERWISE THAN ON NORMAL COMMERCIAL TERMS
39C
The exploitation of a particular result of any activity shall be taken for the purposes of this Part to be an exploitation otherwise than on normal commercial terms if, in the opinion of the Board, any contract or transaction relating to that exploitation would not have been entered into, or contained terms that would not have been contained or would have been different, if the contract or transaction had been entered into by persons dealing with each other at arm's length and from positions of comparable bargaining power.
History
S 39C inserted by No 59 of 1988.
SECTION 39D RESEARCH AND DEVELOPMENT ACTIVITIES FOR THE BENEFIT OF THE AUSTRALIAN ECONOMY
39D(1)
Australian research and development activities are taken to be for the benefit of the Australian economy.
39D(2)
Overseas research and development activities are taken to be for the benefit of the Australian economy if the Board has given a provisional certificate in respect of the activities.
History
S 39D substituted by No 164 of 2007, s 3 and Sch 11 item 51, effective 25 September 2007. No 164 of 2007, s 3 and Sch 11 item 78, contained the following application provision:
78 Application
78(1)
The amendments apply in relation to:
(a)
assessments for years of income starting after 30 June 2007; and
(b)
registrations under section 39J of the Industry Research and Development Act 1986 for those years of income.
78(2)
A term that is used in this item and has a meaning given by the Income Tax Assessment Act 1936 has the same meaning in this item.
S 39D formerly read:
SECTION 39D EXPLOITATION OTHERWISE THAN FOR THE BENEFIT OF THE AUSTRALIAN ECONOMY
39D(1)
The exploitation of a particular result of an activity shall be taken for the purposes of this Part to be an exploitation otherwise than in a manner that is for the benefit of the Australian economy if, in the opinion of the Board, the profits or gains to residents of Australia accruing directly from the exploitation of a significant aspect of that result are not commensurate with the amount expended in the carrying on of that activity in Australia.
39D(2)
In forming an opinion for the purposes of subsection (1), the Board may have regard to:
(a)
the value of the result of the activity;
(b)
the profits or gains to non-residents accruing directly from the exploitation of the result of the activity;
(c)
the amounts respectively expended in the carrying on of the activity inside and outside Australia; and
(d)
any other matters that the Board considers relevant.
S 39D inserted by No 59 of 1988.
SECTION 39E ADEQUATE AUSTRALIAN CONTENT
39E(1)
The Board shall, as soon as practicable (and, in any event, within 90 days) after the commencement of this Part, formulate in writing guidelines to enable eligible companies to ascertain whether proposed Australian research and development activities will be regarded as having an adequate Australian content for the purposes of this Part.
39E(2)
The Board shall cause the guidelines to be published in the Gazette and made available on request, without charge, to any eligible company.
39E(3)
The Board may use as the basis of the guidelines any of the following matters, but is not limited to those matters:
(a)
the proportion of the total expenditure incurred in respect of particular activities that is to be incurred by residents of Australia;
(b)
the extent to which particular activities are to be carried out in Australia;
(c)
the extent to which particular activities are to be carried out by non-residents, whether the activities are to be carried out in Australia or not;
(d)
the extent to which particular activities will involve the use of imported plant or of knowhow or technology acquired outside Australia.
39E(4)
The Board is not entitled, in relation to expenditure incurred by a company on particular activities, to give a certificate stating that it is of the opinion that those activities do not have an adequate Australian content if, at the time when the expenditure was incurred, the activities complied with the guidelines in force at that time.
39E(4A)
The Board may, at any time, and whether or not within 90 days after the commencement of this Part, by instrument in writing, repeal, replace or amend guidelines made under subsection (1).
39E(5)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39E inserted by No 59 of 1988, amended by Nos 181 of 1994 and 84 of 1995.
SECTION 39EA FINANCE SCHEME GUIDELINES
39EA(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines to enable eligible companies to ascertain whether finance schemes in relation to research and development activities carried on, or proposed to be carried on, by eligible companies will be taken to be ineligible finance schemes for the purposes of this Part.
39EA(2)
The Board must cause the finance scheme guidelines to be:
(a)
published in the Gazette; and
(b)
made available on request, without charge, to any eligible company.
39EA(3)
In making finance scheme guidelines about a particular kind of scheme, the matters to which the Board is to have regard include, but are not limited to:
(a)
the manner in which the scheme was entered into or carried out; and
(b)
the form and substance of the scheme; and
(c)
matters relating to the research and development activities to which the scheme relates; and
(d)
the likelihood that section 73CB of the Income Tax Assessment Act 1936 will apply to expenditure incurred in connection with the research and development activities to which the scheme relates.
39EA(4)
The finance scheme guidelines may confer functions and powers on the Board.
39EA(5)
The first finance scheme guidelines may be expressed to apply to schemes entered into or carried out before the commencement of this section.
39EA(5A)
The Board may, at any time, and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under subsection (1).
39EA(6)
An instrument formulating finance scheme guidelines, or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39EA inserted by No 224 of 1992, amended by No 84 of 1995.
SECTION 39EB GUIDELINES CONCERNING OVERSEAS RESEARCH AND DEVELOPMENT ACTIVITIES
39EB(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines setting out the criteria to be met by eligible companies wishing to obtain a provisional certificate under section 39ED in relation to overseas research and development activities proposed to be carried on by them as part of projects of research and development activities.
39EB(2)
The Board must cause the guidelines to be:
(a)
published in the Gazette; and
(b)
made available on request, without charge, to any eligible company.
39EB(3)
The criteria to be set out in the guidelines must include the following criteria:
(a)
it must be shown that the proposed overseas research and development activities cannot be carried out in Australia or the external Territories;
(b)
it must be shown that the results of the overseas research and development activities will be exploited by the eligible company concerned for the benefit of the Australian economy;
(c)
it must be shown that the expenditure:
(i)
that is proposed to be incurred by the eligible company in respect of the overseas research and development activities; and
(ii)
in respect of which the company proposes to claim a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936;
will not exceed 10% of the total expenditure that the company has incurred or proposes to incur on the project of research and development activities.
History
S 39EB(3) amended by No 164 of 2007, s 3 and Sch 11 item 52, by substituting "73QA" for "73Y", effective 25 September 2007. For application provision see note under s 39D.
S 39EB(3) amended by No 170 of 2001, s 3 and Sch 2 item 85 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH" in subpara (c)(ii), effective 30 June 2001.
S 39EB(3) amended by No 170 of 2001, s 3 and Sch 2 item 45 by inserting "or 73BH" after "73B" in subpara (c)(ii), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EB(3A)
The Board may, at any time, and whether or not within 90 days after the commencement of this Part, by writing, repeal, replace or amend guidelines made under subsection (1).
39EB(4)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39EB inserted by No 181 of 1994, amended by No 84 of 1995.
SECTION 39EC APPLICATIONS FOR PROVISIONAL CERTIFICATES
39EC(1)
An eligible company that proposes to incur expenditure in carrying on overseas research and development activities in respect of which it proposes to claim a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936 may apply to the Board for a provisional certificate in respect of the activities.
History
S 39EC(1) amended by No 164 of 2007, s 3 and Sch 11 item 53, by substituting "73QA" for "73Y", effective 25 September 2007. For application provision see note under s 39D.
S 39EC(1) amended by No 170 of 2001, s 3 and Sch 2 item 86 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH", effective 30 June 2001.
S 39EC(1) amended by No 170 of 2001, s 3 and Sch 2 item 46 by inserting "or 73BH" after "73B", effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EC(2)
The application must:
(a)
be in writing; and
(b)
describe the project to which the proposed activities relate; and
(c)
describe the proposed activities; and
(d)
state the respective amounts of expenditure proposed to be incurred by the company on the project that relate to:
(i)
Australian research and development activities; and
(ii)
overseas research and development activities; and
(iii)
if the company proposes to claim a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936 in respect of part only of the expenditure on overseas research and development activities - the amount of that part of the expenditure; and
(e)
be accompanied by any other information that the Board reasonably requires.
History
S 39EC(2) amended by No 164 of 2007, s 3 and Sch 11 item 54, by substituting "73QA" for "73Y" in para (d)(iii), effective 25 September 2007. For application provision see note under s 39D.
S 39EC(2) amended by No 170 of 2001, s 3 and Sch 2 item 87 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH" in subpara (d)(iii), effective 30 June 2001.
S 39EC(2) amended by No 170 of 2001, s 3 and Sch 2 item 47 by inserting "or 73BH" after "73B" in subpara (d)(iii), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
History
S 39EC inserted by No 181 of 1994.
SECTION 39ED BOARD'S DECISION ON APPLICATION FOR PROVISIONAL CERTIFICATE
39ED(1)
After considering an application under section 39EC, the Board must decide to:
(a)
grant the application; or
(b)
refuse the application.
39ED(2)
If the Board has not made a decision under subsection (1) before whichever time (the
eligible time
) is the later of the followingtimes:
(a)
the end of the period (the
original 90-day period
) of 90 days after the day on which the application was received by the Board;
(b)
if the Board, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application - the end of the period of 90 days after the Board receives the further information;
then, at the eligible time, the Board is taken (except for the purpose of subsection (3)) to have made a decision under subsection (1) to refuse the application.
39ED(3)
If the Board makes a decision under subsection (1), the Board must give written notice of the decision to the applicant.
39ED(4)
A notice under subsection (3) relating to a refusal must set out the reasons for the refusal.
39ED(5)
The Board must not grant the application unless the Board is satisfied that the applicant meets the criteria set out in the guidelines formulated under section 39EB.
39ED(6)
If the Board grants the application, it must give to the applicant a provisional certificate in respect of the activities to which the application relates.
39ED(6A)
A provisional certificate granted pursuant to an application made after the commencement of this subsection has effect, and is taken always to have had effect, as if it had been given to the applicant on the day on which the application was made.
History
S 39ED(6A) inserted by No 15 of 1999, s 3 and Sch 1 item 8, effective 9 April 1999.
39ED(7)
A decision under subsection (1) is not invalid merely because it is made after the eligible time unless, before the decision is made, the applicant makes a request to the Board under subsection 39S(2).
Note: Subsection 39S(2) deals with requests to the Board to reconsider decisions.
History
S 39ED inserted by No 181 of 1994, amended by No 82 of 1996.
SECTION 39EE MATTERS TO BE CONTAINED IN PROVISIONAL CERTIFICATE
39EE(1)
A provisional certificate given to an eligible company under section 39ED must:
(a)
describe the overseas research and development activities to which the certificate relates; and
(b)
contain a description of the project of research and development activities to which those overseas research and development activities relate; and
(c)
state the amount of proposed expenditure on overseas research and development activities in respect of which the company proposes to claim a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936; and
(d)
contain any other matters that the Board considers relevant.
History
S 39EE(1) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting "73QA" for "73Y" in para (c), effective 25 September 2007. For application provision see note under s 39D.
S 39EE(1) amended by No 170 of 2001, s 3 and Sch 2 item 88 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH" in para (c), effective 30 June 2001.
S 39EE(1) amended by No 170 of 2001, s 3 and Sch 2 item 48 by inserting "or 73BH" after "73B" in para (c), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EE(2)
After a provisional certificate is given to a company under section 39ED, the company may apply in writing to the Board for the certificate to be amended so as to vary either or both of the following:
(a)
the description of the overseas research and development activities;
(b)
the amount of the proposed expenditure on overseas research and development activities in respect of which the company proposes to claim a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936.
History
S 39EE(2) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting "73QA" for "73Y" in para (b), effective 25 September 2007. For application provision see note under s 39D.
S 39EE(2) amended by No 170 of 2001, s 3 and Sch 2 item 88 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH" in para (b), effective 30 June 2001.
S 39EE(2) amended by No 170 of 2001, s 3 and Sch 2 item 48 by inserting "or 73BH" after "73B" in para (b), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EE(3)
If:
(a)
such an application is made; and
(b)
the provisional certificate is produced to the Board; and
(c)
the Board is satisfied that it is appropriate to amend the certificate having regard to the criteria set out in the guidelines formulated under subsection 39EB(1);
the Board may amend the certificate accordingly and return the amended certificate to the company.
History
S 39EE inserted by No 181 of 1994.
SECTION 39EF BOARD'S POWER TO AMEND OR REVOKE PROVISIONAL CERTIFICATE ON ITS OWN INITIATIVE
39EF(1)
The Board may, on its own initiative, amend or revoke a provisional certificate given to an eligible company under section 39ED as provided in this section.
Note:
For the Board's power to amend the provisional certificate on application by the company, see subsections 39EE(2) and (3).
39EF(2)
If the Board is satisfied that the expenditure (the
claimed overseas expenditure
):
(a)
on the overseas research and development activities to which the certificate relates; and
(b)
in respect of which the company has claimed a deduction under section 73B, 73BA, 73BH or 73QA, or a tax offset under section 73I, of the Income Tax Assessment Act 1936;
exceeds 10% of the total expenditure (the
total project expenditure
) incurred by the company on the project of research and development activities, the Board may, in writing, determine that the provisional certificate is amended, as specified in the determination, so that it does not cover so much of the overseas research and development activities as resulted in the claimed overseas expenditure exceeding 10% of the total project expenditure.
History
S 39EF(2) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting "73QA" for "73Y" in para (b), effective 25 September 2007. For application provision see note under s 39D.
39EF(3)
If the Board makes a determination under subsection (2), the provisional certificate has effect, and is taken always to have had effect, as if it had originally been given as amended in accordance with the determination.
39EF(4)
The Board may, in writing, revoke the certificate if the Board is satisfied that the total expenditure incurred by the company on the project of research and development activities consisted solely of expenditure on overseas research and development activities.
39EF(5)
If the Board revokes the provisional certificate under subsection (4), the provisional certificate is taken never to have been given.
39EF(6)
If the Board decides to make a determination under subsection (2) amending the provisional certificate, or to revoke the provisional certificate under subsection (4), the Board must give notice in writing to the company setting out the decision and the reasons for the decision.
History
S 39EF inserted by No 15 of 1999, s 3 and Sch 1 item 9, effective 9 April 1999.
SECTION 39F REGISTRATION OF AUSTRALIAN RESEARCH AGENCIES
39F(1)
Any body of persons, whether corporate or unincorporate, may make an application to the Board in writing, in accordance with a form approved by the Board, for registration as an Australian research agency for the purpose of performing a particular class of Australian research and development activities on behalf of registered eligible companies or foreign companies.
History
S 39F(1) amended by No 164 of 2007, s 3 and Sch 11 item 56, by inserting "or foreign companies" at the end, effective 25 September 2007. For application provision see note under s 39D.
39F(2)
The Board shall, in consultation with the Commissioner, as soon as practicable (and, in any event, within 90 days) after the commencement of this Part, formulate in writing criteria to be met by bodies wishing to be registered under this section and shall cause the criteria so formulated to be made available to any person upon request, without charge, and to be published in the Gazette and in such other manner as the Board considers appropriate.
39F(3)
Where a body purported before the commencement of this Part to make an application to the Board for registration as an Australian research agency, the application shall be taken to have been as valid as it would have been if this section has been in force when the application was made.
39F(4)
Subject to subsection (9), where an application has been made in accordance with subsection (1) and the Board is satisfied that the applicant meets the criteria, the Board shall register the applicant as an Australian research agency in respect of such class of Australian research and development activities as the Board considers the applicant is qualified to perform and shall give to the applicant notice in writing of the result of the application.
39F(5)
The registration of an Australian research agency shall be taken to have had effect on and from:
(a)
if the body concerned was, on 30 June 1988, an approved Australian research institute - 1 July 1988; or
(b)
otherwise - the date on which the application for registration was received by the Board.
39F(6)
Subject to subsections (7) and (9), the Board may, on application made by a registered Australian research agency in writing, in accordance with a form approved by the Board, vary the class of Australian research and development activities in respect of which the agency is registered and shall give to the agency notice in writing of the result of the application.
39F(7)
The Board shall not vary the class of Australian research and development activities in respect of which an Australian research agency is registered so as to include additional activities unless the Board is satisfied that the agency is qualified to perform those additional activities.
39F(8)
The date of effect of such a variation is the date on which the variation is made to the register of Australian research agencies.
39F(9)
Where the Board considers that it will be necessary for the purpose of dealing with an application under this section to make inquiries as to the applicant's qualifications to perform particular Australian research and development activities, the Board may, before dealing with the application, by notice in writing given to the applicant, require the applicant to pay such amount (not exceeding $1,000 or such higher amount as is prescribed) as the Board determines in or towards meeting the cost of the inquiries.
39F(10)
If the Board:
(a)
refuses an application to register a body as an Australian research agency; or
(b)
refuses an application to register a body as an Australian research agency in respect of, or to vary the registration of a body that is a registered Australian research agency so as to include, particular Australian research and development activities;
the notice to the applicant stating the result of the application shall also state the reasons for the refusal.
39F(10A)
The Board may, in consultation with the Commissioner at any time and whether or not within 90 days after the commencement of this Part, by writing, repeal, replace or amend criteria made under subsection (2).
39F(11)
An instrument formulating criteria under subsection (2), or repealing, replacing or amending such criteria, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39F inserted by No 59 of 1988; amended by Nos 66 of 1991, 181 of 1994 and 84 of 1995.
SECTION 39FA NOTICES ABOUT CONTINUING REGISTRATION OF AUSTRALIAN RESEARCH AGENCIES
39FA(1)
The Board may give a body of persons, whether corporate or unincorporate, that is registered under section 39F as an Australian research agency a notice:
(a)
asking the body if it wishes to continue to be registered under that section; and
(b)
attaching a form to be completed by the body and returned to the Board if the body does wish to continue to be registered.
39FA(2)
The Board must not give the body a notice under subsection (1) within 12 months of when it last gave the body such a notice.
39FA(3)
If the body does not complete and return the form within 30 days, or such longer period as the Board allows, of the body being given the notice, the registration of the body is cancelled, by force of this subsection, at the end of that period.
History
S 39FA inserted by No 15 of 1999, s 3 and Sch 1 item 10, effective 9 April 1999.
SECTION 39G CANCELLATION OF REGISTRATION OF RESEARCH AGENCIES
39G(1)
The Board shall determine the grounds on which the registration of a research agency may be cancelled and shall cause the grounds so determined to be made available to any person upon request, without charge, and to be published in the Gazette and in such other manner as the Board considers appropriate.
39G(2)
The grounds to be determined under subsection (1) shall include the failure of a research agency to meet a criterion formulated under subsection 39F(2).
39G(3)
Where the Board is of the opinion that a ground may exist for cancelling the registration of a research agency, the Board shall:
(a)
give notice in writing to the research agency stating that it is of that opinion and specifying particulars of the ground concerned; and
(b)
invite the research agency to make a written submission to the Board in relation to the matter within 90 days.
39G(4)
If, after the end of that period or the receipt of a submission by the research agency, whichever first happens, and, if such a submission is received, after having regard to the matters raised in the submission, the Board is satisfied that the ground has been established, the Board may cancel the registration of the research agency.
39G(5)
If the Board cancels the registration of a research agency, the Board shall give notice in writing to the agency stating the reasons for the cancellation.
39G(6)
Except as provided by subsections (3) and (4), the Board may not cancel the registration of a research agency.
Note:
The registration of a research agency may also be cancelled by force of subsection 39FA(3).
History
S 39G(6) amended by No 15 of 1999, s 3 and Sch 1 item 11, by inserting the Note, effective 9 April 1999.
History
S 39G inserted by No 59 of 1988.
SECTION 39H
SECTION 39H BOARD TO PUBLICISE PARTICULARS OF REGISTERED RESEARCH AGENCIES
39H
The Board shall:
(a)
cause the register of research agencies to be made available for inspection at any reasonable time by any person on request; and
(b)
cause to be published in each report of the Board under section 46 a list of the names of registered research agencies as at the end of the year to which the report relates and the classes of activities in respect of which those agencies are respectively registered.
History
S 39H inserted by No 59 of 1988.
SECTION 39HA REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HA(1)
Register to be kept by Board.
The Board must keep a register, to be known as the Register of Commercial Government Bodies, listing such eligible government bodies as are required to be on the register because of this Part.
39HA(2)
Register to be open for inspection.
The Board must cause the Register of Commercial Government Bodies to be made available for inspection at any reasonable time by any person on request.
History
S 39HA inserted by No 224 of 1992.
SECTION 39HB COMMERCIAL GOVERNMENT BODIES GUIDELINES
39HB(1)
Board to make guidelines setting out criteria for entry on Register.
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines (
commercial government bodies guidelines
) setting out criteria to be met by eligible government bodies wishing to be entered on the Register of Commercial Government Bodies.
39HB(2)
Guidelines to be published etc.
The Board must cause the commercial government bodies guidelines to be:
(a)
published in the Gazette; and
(b)
made available, without charge, to any interested person.
39HB(3)
Matters to be taken into account in making guidelines.
In making commercial government bodies guidelines about a particular kind of eligible government body, the matters to which the Board is to have regard include, but are not limited to:
(a)
the commercial environment in which the eligible government body operates; and
(b)
whether there is a framework for the oversight of the operations, and the monitoring of the performance, of the eligible government body and, if so, the nature of that framework; and
(c)
the extent to which the eligible government body is:
(i)
bound by regulatory laws of the Commonwealth, the States and the Territories; and
(ii)
subject to taxation and charges under the laws of the Commonwealth, the States and the Territories; and
(d)
the extent of private sector equity investment (whether direct or indirect through one or more interposed companies, partnerships or trusts) in the eligible government body; and
(e)
if the eligible government body is established by or under a law of the Commonwealth, a State or a Territory - the policies of the Commonwealth, the State or the Territory, as the case requires, regarding the issue of the extent to which the eligible government body should be treated as a fully commercial entity.
39HB(4)
Tax-exempt bodies ineligible for entry on Register.
The commercial government bodies guidelines must set out a criterion to the effect that an eligible government body will not be entered on the Register of Commercial Government Bodies with effect on a particular day if, assuming that the body had derived income on that day, that income would have been exempt from income tax because of a relevant exempting provision (within the meaning of section 160K of the Income Tax Assessment Act 1936).
39HB(4A)
Board may repeal, replace or amend guidelines.
The Board may, at any time and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under this section.
39HB(5)
Guidelines to be disallowable.
An instrument formulating commercial government bodies guidelines, or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39HB inserted by No 224 of 1992, amended by No 84 of 1995.
SECTION 39HC APPLICATIONS FOR ENTRY ON THE REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HC(1)
An eligible government body may apply to the Board to be entered on the Register of Commercial Government Bodies.
39HC(2)
The application must be:
(a)
in writing; and
(b)
in a form approved by the Board; and
(c)
accompanied by such information as the Board requires.
History
S 39HC inserted by No 224 of 1992.
SECTION 39HD BOARD'S DECISION ON APPLICATION FOR ENTRY ON REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HD(1)
Board's decision on application.
After considering an application under section 39HC, the Board must decide to:
(a)
grant the application; or
(a)
refuse the application.
39HD(2)
Board deemed to have refused application if no decision made within 90 days.
If the Board has not made a decision under subsection (1) before whichever time (
eligible time
) is the later of the following times:
(a)
the end of the period (
original 90-day period
) of 90 days after the day on which the application was received by the Board;
(b)
if the Board, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application - the end of the period of 90 days after the Board receives the further information;
then, at the eligible time, the Board is taken to have made a decision under subsection (1) to refuse the application.
39HD(3)
Notice of decision.
If the Board makes a decision under subsection (1) before the eligible time, the Board must give written notice of the decision to the applicant.
39HD(4)
Reasons for refusal to be given.
A notice under subsection (3) relating to a refusal must set out the reasons for the refusal.
39HD(5)
When entry takes effect.
If the Board decides to grant the application, the entry of the eligible government body takes effect on:
(a)
the day on which the decision is made; or
(b)
if the applicant requests - such earlier date as the Board specifies.
39HD(6)
Entry may take effect on a date earlier than commencement of this section.
The Board may specify a date under paragraph (5)(b) that is earlier than the commencement of this section.
39HD(7)
Back-dated entries - Register taken to have been in existence.
If the Board specifies such an earlier date, this Part and section 73CB of the Income Tax Assessment Act 1936 have effect as if the Register of Commercial Government Bodies had been in existence on that date.
History
S 39HD inserted by No 224 of 1992.
SECTION 39HE
SECTION 39HE GRANT OF APPLICATION FOR ENTRY ON REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HE
The Board must not grant an application under section 39HC unless the Board is satisfied that the applicant meets the criteria set out in the commercial government bodies guidelines.
History
S 39HE inserted by No 224 of 1992.
SECTION 39HF REMOVAL FROM REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HF(1)
Removal of body which does not meet criteria set out in guidelines.
The Board must remove an eligible government body from the Register of Commercial Government Bodies if the Board is satisfied that the body does not meet the criteria set out in the commercial government bodies guidelines.
39HF(2)
Notification of proposed removal.
The Board must not remove an eligible government body from the Register of Commercial Government Bodies unless the Board has:
(a)
given a written notice to the body:
(i)
stating that the Board is considering removing the body from the Register of Commercial Government Bodies; and
(ii)
giving the reasons for considering the removal of the body; and
(b)
invited the body to make a written submission to the Board:
(i)
within 60 days of receiving the notice; and
(ii)
about the proposed removal; and
(c)
if such a submission is made within that period - had regard to the matters raised in the submission.
39HF(3)
When removal takes effect.
If the Board decides to remove the body from the Register of Commercial Government Bodies, the removal takes effect on the day on which the notice mentioned in paragraph (2)(a) was given to the body.
39HF(4)
Notification of removal.
If the Board decides to remove the body from the Register of Commercial Government Bodies, the Board must give written notice of the removal to the body.
History
S 39HF inserted by No 224 of 1992.
SECTION 39HG APPLICATIONS FOR ADVANCE REGISTRATION OF ELIGIBLE COMPANIES
39HG(1)
An eligible company may, during a year of income, apply to the Board for advance registration, in relation to proposed research and development activities, in respect of all or any of the following years of income:
(a)
the first-mentioned year of income;
(b)
the next 2 years of income.
History
S 39HG(1) amended by No 164 of 2007, s 3 and Sch 11 item 57, by omitting "its" after "in relation to", effective 25 September 2007. For application provision see note under s 39D.
39HG(2)
The application must:
(a)
specify the name of the company; and
(b)
specify the year or years of income in respect of which advance registration is sought; and
(c)
describe the project to which the proposed research and development activities relate; and
(d)
specify and describe the activities; and
(e)
specify the expenditure proposed to be incurred by the company in relation to the activities during the year or years of income; and
(f)
specify when the activities will be undertaken; and
(g)
specify each company on behalf of which the activities will be undertaken.
Note:
A company on behalf of which the activities will be undertaken may be the applicant or a foreign company with which the applicant is grouped under section 73L of the Income Tax Assessment Act 1936.
History
S 39HG(2) amended by No 164 of 2007, s 3 and Sch 11 items 58 and 59, by substituting "the" for "its" in para (c) and inserting para (g) and the note at the end, effective 25 September 2007. For application provision see note under s 39D.
39HG(3)
The application must:
(a)
be in a form approved by the Board; and
(b)
be accompanied by the appropriate fee (if any) prescribed under section 48A.
History
S 39HG inserted by No 82 of 1996.
SECTION 39HH ADVANCE REGISTRATION OF ELIGIBLE COMPANIES
39HH(1)
Subject to section 39HI, if:
(a)
an eligible company applies to the Board for advance registration in accordance with section 39HG; and
(b)
the company provides to the Board such information in relation to the research and development activities proposed in the application as the Board reasonably requires;
the Board must grant advance registration to the company, in relation to the activities, in respect of the year or years of income to which the application relates.
History
S 39HH(1) amended by No 164 of 2007, s 3 and Sch 11 item 60, by substituting "the research and development activities proposed in the application" for "its proposed research and development activities" in para (b), effective 25 September 2007. For application provision see note under s 39D.
39HH(2)
If the Board refuses to register a company in respect of a year or years of income, the Board must give notice in writing to the company stating the reasons for the refusal.
History
S 39HH(2) amended by No 170 of 2001, s 3 and Sch 2 item 89 by substituting ", 73BA, 73BH or 73Y, or a tax offset under section 73I," for "or 73BH" in the note, effective 30 June 2001.
S 39HH(2) amended by No 170 of 2001, s 3 and Sch 2 item 49 by inserting "or 73BH" after "73B" in the note, effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
Note:
Advance registration does not remove the need to be registered under section 39J or 39P in order to claim a deduction under section 73B, 73BA, 73BH, 73QA or 73QB, or a tax offset under section 73I, of the Income Tax Assessment Act 1936 for expenditure in relation to research and development activities.
History
S 39HH amended by No 164 of 2007, s 3 and Sch 11 item 61, by substituting ", 73QA or 73QB" for "or 73Y" in the note, effective 25 September 2007. For application provision see note under s 39D.
S 39HH inserted by No 82 of 1996.
SECTION 39HI GROUNDS FOR REFUSAL OF ADVANCE REGISTRATION
39HI(1)
It is a ground on which the Board is entitled to refuse advance registration of an eligible company, in relation to particular research and development activities in respect of a year or years of income, that the activities are not research and development activities.
39HI(2)
Subject to subsection (3), the regulations may specify other grounds on which the Board is entitled to refuse advance registration of a company in respect of any year of income or in respect of a particular year or years of income.
39HI(3)
The regulations may not specify a ground unless it relates to a matter the determination of which under this Part is a function of the Board.
History
S 39HI inserted by No 82 of 1996.
SECTION 39J REGISTRATION OF ELIGIBLE COMPANIES
39J(1)
Subject to section 39K, if:
(a)
an eligible company applies to the Board for registration in relation to activities of either or both of the following kinds in respect of a year of income:
(i)
the eligible company's research and development activities;
(ii)
activities described in paragraph 73B(14C)(g) of the Income Tax Assessment Act 1936 in relation to the eligible company; and
(aa)
the application is in accordance with section 39JD; and
(b)
the company provides to the Board such information in relation to the activities covered by the application as the Board reasonably requires;
the Board shall register the company, in relation to those research and development activities, in respect of that year of income.
History
S 39J(1) amended by No 164 of 2007, s 3 and Sch 11 items 62 and 63, by substituting para (a) and substituting "the activities covered by the application" for "its research and development activities" in para (b), effective 25 September 2007. For application provision see note under s 39D. Para (a) formerly read:
(a)
an eligible company applies to the Board for registration in relation to its research and development activities in respect of a year of income; and
No 15 of 1999, which amended subsec (1A) and inserted subsec (5A) and (5B), contained the following provision:
Treatment of certain applications lodged with the Australian Taxation Office
4(1)
This section applies only to applications made under section 39J of the Industry Research and Development Act 1986 by the following companies:
(a)
Aussie Diamond Products Pty Limited (ACN 051 488 656);
(b)
Creative Objects Pty Ltd (ACN 065 617 781);
(c)
Cutler Brands Pty Ltd (ACN 050 166 160);
(d)
Futureweld Pty Ltd (ACN 053 762 744);
(e)
Learning Curve Pty Limited (ACN 008 658 624);
(f)
NSJA Investments Pty Limited (ACN 007 288 637) (previously known as Strategos Pty Ltd);
4(2)
If, before the commencement of this section:
(a)
an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b)
the application was received by the Board after the end of the period for making the application; and
(c)
the company was refused registration under section 39J merely because the application was not made within the period for making the application;
the Board must take the application to have been made within the period for making the application and reconsider the application for registration under section 39J as soon as possible after the commencement of this section.
4(3)
If, before the commencement of this section:
(a)
an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b)
the application was received by the Board after the end of the period for making the application; and
(c)
the Board decided to register the company under section 39J;
the validity of the registration is not affected, and is taken never to have been affected, by the fact that the application was not made within the period for making the application.
4(4)
If, before the commencement of this section:
(a)
an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b)
the application was received by the Board after the end of the period for making the application; and
(c)
the Board did not register, or refuse to register, the company under section 39J;
the Board must take the application to have been made within the period for making the application and consider the application for registration under section 39J as soon as possible after the commencement of this section.
4(5)
In this section:
application
includes a copy of an application.
Board
means the Industry Research and Development Board.
39J(1A)
Subject to sections 39JA, 39JB, 39JC, 39JE and 39JF, the Board cannot register a company under this section, in relation to activities, in respect of a year of income:
(a)
if the year is the 1992-93 year of income or an earlier year of income - after 2.30 pm Australian Eastern Standard Time on 6 December 1995; or
(b)
if the year is the 1993-94 or 1994-95 year of income - unless the application for registration is made before 7 June 1996; or
(c)
if the year is the 1995-96 year of income or a later year of income that ends before the commencement of paragraph (d) - unless the application for registration is made after the end of the year of income but within 6 months after the end of that year; or
(d)
if the year of income ends on or after the commencement of this paragraph - unless the application for registration is made after the end of the year of income but within 10 months after the end of that year.
History
S 39J(1A) amended by No 164 of 2007, s 3 and Sch 11 item 64, by omitting "the company's research and development" after "in relation to", effective 25 September 2007. For application provision see note under s 39D.
S 39J(1A) amended by No 15 of 1999, s 3 and Sch 1 items 12 to 14, by substituting ", 39JE and 39JF" for "and 39JE", inserting "that ends before the commencement of paragraph (d)" [ie before 9 April 1999] after "or a later year of income", and by inserting para (d), effective 9 April 1999.
39J(2)
An application by, or a registration of, a company under subsection (1) may relate to a year of income that ended before the commencement of this Part.
39J(3)
Notwithstanding subsection (1), the Board may refuse to register a company in relation to a year of income unless the application is made after the end of that year of income.
39J(4)
The registration of a company in respect of a year of income is not invalid merely because a ground existed on which the Board was entitled to refuse to register the company in respect of that year of income.
39J(5)
The registration of a company in respect of a year of income is irrevocable.
39J(5A)
The Board may alter the registration of a company in respect of a year of income if:
(a)
the alteration will correct a mistake in the registration; and
(b)
the mistake occurred because the application for registration contained an error in the information required to be specified, or included, in the application under paragraph 39JD(1)(a), (d) or (e); and
(c)
the Board determines that it is appropriate for the alteration to be made.
History
S 39J(5A) inserted by No 15 of 1999, s 3 and Sch 1 item 15, effective 9 April 1999.
39J(5B)
If the Board alters the registration of a company in respect of a year of income under subsection (5A), the registration has effect, and is taken always to have had effect, as if it had originally been made as altered.
History
S 39J(5B) inserted by No 15 of 1999, s 3 and Sch 1 item 15, effective 9 April 1999.
39J(6)
If the Board refuses to register a company in respect of a year of income, the Board shall give notice in writing to the company stating the reasons for the refusal.
History
S 39J inserted by No 59 of 1988, amended by No 82 of 1996.
SECTION 39JA REGISTRATION: ELIGIBLE COMPANIES WITH A REGISTRATION HISTORY
39JA(1)
For the purposes of this section, an eligible company is taken to have a registration history only if:
(a)
the company has been registered under section 39J in respect of at least 2 years of income during the period starting at the beginning of the 1985-86 year of income and ending at the end of the 1992-93 year of income; and
(b)
the company was so registered before the end of 12 months after the end of the 1992-93 year of income.
39JA(2)
If an eligible company has a registration history, paragraph 39J(1A)(a) does not apply in relation to the company in respect of a year of income that occurred after the second year of income during the period mentioned in paragraph (1)(a), in respect of which the company was registered before the beginning of the 1993-94 year of income.
39JA(3)
The Board cannot register under section 39J an eligible company that has a registration history in respect of a year of income that occurred after the second year of income during the period mentioned in paragraph (1)(a), in respect of which the company was registered before the beginning of the 1993-94 year of income, unless the application for registration is made before 1 July 1997.
History
S 39JA inserted by No 82 of 1996.
SECTION 39JB REGISTRATION: ELIGIBLE COMPANIES WITH A CLAIM HISTORY
39JB(1)
For the purposes of this section, an eligible company is taken to have a claim history only if:
(a)
the company has claimed a deduction under section 73B of the Income Tax Assessment Act 1936 (otherwise than by way of an application for an amendment of its assessment) in respect of the 1992-93 year of income, or an earlier year of income; and
(b)
the company was not registered under section 39J in respect of that year of income; and
(c)
an assessment of the amount of the company's taxable income for that year of income was made before 7 December 1995.
39JB(2)
If an eligible company has a claim history, paragraph 39J(1A)(a) does not apply in relation to the company in respect of the year of income to which the deduction mentioned in paragraph (1)(a) related.
39JB(3)
The Board cannot register under section 39J an eligible company that has a claim history in respect of the year of income mentioned in subsection (2) unless the application for registration is made before 1 July 1997.
History
S 39JB inserted by No 82 of 1996.
SECTION 39JC REGISTRATION: ELIGIBLE COMPANIES WITH A TAX LOSS HISTORY
39JC(1)
For the purposes of this section, an eligible company is taken to have a tax loss history only if:
(a)
the company makes an application for registration under section 39J in respect of the 1992-93 year of income, or an earlier year of income; and
(b)
the company had no taxable income in that year of income, nor in every subsequent year of income that ended before 7 December 1995.
39JC(2)
If an eligible company has a tax loss history, paragraph 39J(1A)(a) does not apply in relation to the eligible company in respect of the year of income that is the subject of the application mentioned in paragraph (1)(a).
39JC(3)
The Board cannot register under section 39J an eligible company that has a tax loss history in respect of the year of income mentioned in subsection (2) unless the application for registration is made before 1 July 1997.
History
S 39JC inserted by No 82 of 1996.
SECTION 39JD APPLICATIONS UNDER SECTION 39J
39JD(1)
An application to the Board for registration under section 39J in respect of a year of income must:
(a)
specify the name of the eligible company; and
(b)
contain the information required by the application form in respect of the activities in relation to which registration is sought; and
(ba)
contain a declaration, by an officer of the company who is authorised by the company to make the declaration, stating that the company has, while the activities were carried on, maintained records that substantiate the carrying on of the activities; and
(bb)
specify each company on behalf of which each of the activities was undertaken; and
(c)
specify the expenditure incurred by the company in relation to the activities during the year of income; and
(d)
specify which (if any) of the activities have been the subject of advance registration in respect of that year; and
(e)
include such other information as is specified in the regulations.
Note 1:
Requirements in the application form or the regulations for the provision of information in respect of an application may be different for different situations.
Note 2:
A company on behalf of which an activity was undertaken might be the eligible company applying for registration or a foreign company with which the applicant is grouped under section 73L of the Income Tax Assessment Act 1936.
History
S 39JD(1) amended by No 164 of 2007, s 3 and Sch 11 items 65 to 69, by omitting "research and development" after "in respect of the" in para (b), substituting "the activities were carried on, maintained records that substantiate the carrying on of the activities" for "carrying on the activities, maintained records that substantiate the company's carrying on of the activities" in para (ba), inserting para (bb), substituting "Note 1" for "Note" in the first note and inserting Note 2 at the end, effective 25 September 2007. For application provision see note under s 39D.
S 39JD(1) amended by No 15 of 1999, s 3 and Sch 1 items 16 and 17, by substituting para (b) and inserting para (ba) and the Note, effective 9 April 1999. Para (b) formerly read:
(b)
specify and describe the research and development activities in relation to which registration is sought; and
39JD(2)
The application must:
(a)
be in a form approved by the Board; and
(b)
be accompanied by the appropriate fee (if any) prescribed under section 48A.
39JD(3)
The company may amend its application at any time before the period under paragraph 39J(1A)(b) or (c) (as the case may be) for making the application ends.
39JD(4)
In this section:
application form
means the appropriate form approved by the Board under subsection (2).
History
S 39JD(4) inserted by No 15 of 1999, s 3 and Sch 1 item 18, effective 9 April 1999.
History
S 39JD inserted by No 82 of 1996.
SECTION 39JE APPLICATION FOR EXTENSION OF TIME IF APPLICATION OTHERWISE SUBJECT TO A 6 MONTH LIMIT
39JE(1A)
This section applies to a year of income of an eligible company that is:
(a)
the 1995-96 year of income of the company; or
(b)
a later year of income of the company that ends before the commencement of paragraph 39J(1A)(d).
History
S 39JE(1A) inserted by No 15 of 1999, s 3 and Sch 1 item 19, effective 9 April 1999.
39JE(1)
The Board may, on a request made under this section by an eligible company, extend the period for making an application for registration under section 39J in respect of a year of income of the company to which this section applies.
History
S 39JE(1) amended by No 15 of 1999, s 3 and Sch 1 item 20, by substituting ``a year of income of the company to which this section applies'' for ``the 1995-96 year of income, or a later year of income'', effective 9 April 1999.
39JE(2)
The Board must not grant a request made in respect of a year of income that occurs after the 1995-96 year of income if it has granted a request under this section in respect of the immediately preceding year of income.
39JE(3)
A request must:
(a)
be in writing; and
(b)
set out the reasons why the company cannot make an application for registration under section 39J within 6 months after the end of the year of income to which it relates; and
(c)
be received by the Board within that period of 6 months.
39JE(4)
If the Board grants a request in respect of a year of income under this section, the company may make an application under section 39J in respect of that year of income within 9 months after the end of that year.
39JE(5)
If a request in respect of a year of income is granted on, or as a result of, a review under section 39S or 39T, the company may make an application under section 39J in respect of that year of income within whichever of the following periods ends last:
(a)
9 months after the end of that year;
(b)
3 months after the day the decision on the review is made.
History
S 39JE inserted by No 82 of 1996.
SECTION 39JF REGISTRATION IF APPLICATION FOR REGISTRATION MADE AFTER EXPIRY OF PERIOD FOR MAKING APPLICATION
39JF(1)
The Board may register an eligible company under section 39J in respect of a year of income, despite the fact that the application for registration was not made within the period for making the application, if the Board considers that the application was made after the end of the period due to exceptional circumstances.
39JF(2)
If the Board proposes to refuse to register the company on the ground that the application was not made within the period for making the application, the Board must give written notice to the applicant advising the applicant of:
(a)
the proposed refusal; and
(b)
the right to lodge a statement and supporting evidence under subsection (3).
39JF(3)
Within 30 days of the Board giving notice to the applicant, the applicant may lodge with the Board a written statement that:
(a)
asks the Board to register the company despite the fact that the application was not made within the period for making the application; and
(b)
sets out reasons why the application was not made within the period for making the application.
If the applicant lodges a statement in accordance with this subsection, the applicant may also lodge evidence to support the statement within that 30 day period.
39JF(4)
The Board must wait until the end of that 30 day period before deciding whether to register the company under section 39J, as mentioned in subsection (1), despite the lateness of the application. When making that decision, the Board must take into account any statement and evidence lodged by the applicant under subsection (3).
History
S 39JF inserted by No 15 of 1999, s 3 and Sch 1 item 21, effective 9 April 1999.
SECTION 39K GROUNDS FOR REFUSAL TO REGISTER ELIGIBLE COMPANIES
39K(1)
Subject to subsection (1A), it is a ground on which the Board is entitled to refuse to register an eligible company, in relation to particular research and development activities in respect of a year of income, that the activities are not research and development activities.
39K(1A)
If advance registration has been granted to an eligible company, in relation to particular research and development activities in respect of a year of income, the Board must not refuse to register the company in relation to those activities in respect of that year on the ground that they are not research and development activities.
39K(1B)
The Board is entitled to refuse to register an eligible company, in relation to activities described in paragraph 73B(14C)(g) of the Income Tax Assessment Act 1936 in relation to the company in respect of a year of income, on the ground that the activities are not activities that would be Australian-centred research and development activities if subsection 73B(2BA) of that Act had not been enacted.
History
S 39K(1B) inserted by No 164 of 2007, s 3 and Sch 11 item 70, effective 25 September 2007. For application provision see note under s 39D.
39K(2)
Subject to subsection (3), the regulations may specify other grounds on which the Board is entitled to refuse to register a company in respect of any year of income or in respect of a particular year of income or years of income.
39K(3)
The regulations may not specify a ground unless it relates to a matter the determination of which under this Part is a function of the Board.
39K(4)
The Board need not, before registering a company, satisfy itself that no grounds exist for refusing the registration.
History
S 39K inserted by No 59 of 1988, amended by No 82 of 1996.
SECTION 39KA GUIDELINES CONCERNING PLANS FOR RESEARCH AND DEVELOPMENT ACTIVITIES
39KA(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines setting out the requirements for plans for the purposes of subsection 73B(2BA) of the Income Tax Assessment Act 1936.
39KA(1A)
In formulating the guidelines, the Board must ensure that, having regard to the size and complexity of the activities that are to be carried out in accordance with the plans, the guidelines will not impose undue burdens on eligible companies that are small.
39KA(2)
The Board must cause the guidelines to be:
(a)
published in the Gazette; and
(b)
made available on request without charge, to any eligible company.
39KA(3)
The requirements may cover the following matters:
(a)
who is to make the plans;
(b)
who is to approve the plans;
(c)
when the plans are to be made;
(d)
what the plans are to contain;
(e)
how the plans can be amended;
(f)
any other matter.
39KA(4)
The Board may, at any time, and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under subsection (1).
39KA(5)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
History
S 39KA inserted by No 170 of 2001, s 3 and Sch 1 item 7, effective 1 October 2001.
SECTION 39L CERTIFICATE AS TO RESEARCH AND DEVELOPMENT ACTIVITIES
39L(1)
The Board may, and shall if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular activities that have been or are being carried on by or on behalf of a person were or are research and development activities.
39L(2)
If the Board issues a certificate to the effect that particular activities were not or are not research and development activities, the Board must give notice in writing to the person concerned stating the reasons for issuing the certificate.
39L(3)
If the activities were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that was or is incurring expenditure in relation to the carrying on of the activities, the Board must give a copy of the notice to the eligible company.
History
S 39L(3) inserted by No 164 of 2007, s 3 and Sch 11 item 71, effective 25 September 2007. For application provision see note under s 39D.
History
S 39L inserted by No 59 of 1988; amended by Nos 167 of 1989 and 66 of 1991.
SECTION 39LAAA CERTIFICATE AS TO AUSTRALIAN-CENTRED RESEARCH AND DEVELOPMENT ACTIVITIES
39LAAA(1)
The Board may give to the Commissioner a certificate stating whether particular activities were Australian-centred research and development activities.
39LAAA(2)
The Board must give to the Commissioner a certificate described in subsection (1) if the Commissioner gives the Board a written request to do so.
39LAAA(3)
If:
(a)
the activities covered by a certificate given under this section were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that incurred expenditure in relation to the carrying on of the activities; and
(b)
the certificate states that the activities were not Australian-centred research and development activities;
the Board must give notice in writing to the eligible company, stating the reasons for giving the certificate.
History
S 39LAAA inserted by No 164 of 2007, s 3 and Sch 11 item 72, effective 25 September 2007. For application provision see note under s 39D.
SECTION 39LAAB CERTIFICATE AS TO ACTIVITIES THAT WOULD BE AUSTRALIAN-CENTRED RESEARCH AND DEVELOPMENT ACTIVITIES APART FROM NEED FOR PLAN
39LAAB(1)
The Board may give to the Commissioner a certificate stating whether particular activities were activities that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted.
Note 1:
Subsection 73B(2BA) of the Income Tax Assessment Act 1936 says activities are not research and development activities unless they are carried on in accordance with a plan that complies with any guidelines formulated by the Board under section 39KA of this Act that are in force at the time.
Note 2:
Activities may be ones that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted, whether or not the activities were carried on in accordance with such a plan.
39LAAB(2)
The Board must give to the Commissioner a certificate described in subsection (1) if the Commissioner gives the Board a written request to do so.
39LAAB(3)
If:
(a)
the activities covered by a certificate given under this section were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that incurred expenditure in relation to the carrying on of the activities; and
(b)
the certificate states that the activities were activities that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted;
the Board must give notice in writing to the eligible company, stating the reasons for giving the certificate.
History
S 39LAAB inserted by No 164 of 2007, s 3 and Sch 11 item 72, effective 25 September 2007. For application provision see note under s 39D.
SECTION 39LAA CERTIFICATE AS TO OVERSEAS RESEARCH AND DEVELOPMENT ACTIVITIES
39LAA(1)
The Board may, and must if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular activities that have been or are being carried on by or on behalf of an eligible company in respect of a project are the overseas research and development activities described in the provisional certificate given to the company.
39LAA(2)
If the Board gives a certificate under subsection (1), the Board must give to the company concerned:
(a)
a copy of the certificate; and
(b)
if the Board decided that particular activities were not the overseas research and development activities described in the provisional certificate - a statement of the reasons for its decision.
History
S 39LAA inserted by No 181 of 1994.
SECTION 39LA CERTIFICATE AS TO CORE TECHNOLOGY
39LA(1)
The Board may, and must if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular technology that an eligible company has acquired, or has acquired the right to use, for the purposes of particular research and development activities that have been or are being carried on by or on behalf of the company was core technology in relation to those activities.
39LA(2)
If the Board issues a certificate to the effect that particular technology was not core technology, the Board must give notice in writing to the eligible company concerned stating the reasons for issuing the certificate.
History
S 39LA inserted by No 35 of 1990, amended by No 66 of 1991.
SECTION 39M CERTIFICATE AS TO EXPLOITATION OF RESULTS, OR AUSTRALIAN CONTENT, OF ACTIVITIES
39M(1)
Where:
(a)
expenditure has been incurred by a company registered under section 39J or 39P:
(i)
on particular research and development activities; or
(ii)
in the acquisition or construction of plant, an asset or a building, or an extension, alteration or improvement to a building, for use in particular research and development activities; and
(b)
the Board is of the opinion that:
(i)
any of the results of those research and development activities have been exploited otherwise than on normal commercial terms; or
(ia)
those research and development activities are not for the benefit of the Australian economy; or
(ii)
those research and development activities do not have an adequate Australian content; or
(iii)
it would have been reasonable to expect there to have been some exploitation, after the commencement of this subparagraph, of the results of those research and development activities but no such exploitation has occurred;
the Board may, subject to subsection 39E(4), give a certificate in writing to the Commissioner:
(c)
stating that it is of that opinion;
(d)
specifying the research and development activities concerned; and
(e)
giving the reasons for its opinion.
History
S 39M(1) amended by No 164 of 2007, s 3 and Sch 11 item 73, by substituting para (b)(i) and (b)(ia) for para (b)(i), effective 25 September 2007. For application provision see note under s 39D.
Para (b)(i) formerly read:
(i)
any of the results of those research and development activities have been exploited otherwise than:
(A)
on normal commercial terms; or
(B)
in a manner that is for the benefit of the Australian economy; or
S 39M(1) amended by No 170 of 2001, s 3 and Sch 2 item 90 by inserting ", an asset" after "plant" in subpara (a)(ii), effective 30 June 2001.
S 39M(1) amended by No 15 of 1999, s 3 and Sch 1 item 22, by inserting subpara (1)(b)(iii), effective 9 April 1999.
39M(2)
The Board shall not give a certificate under this section in relation to a company unless the Board has:
(a)
given notice in writing to the company stating that it is considering giving the certificate, specifying the activities to which the certificate would relate and informing the company of the reasons why it is considering giving the certificate;
(b)
invited the company to make a written submission to the Board in relation to the matter within 90 days; and
(c)
if such a submission is made within that period, had regard to the matters raised in the submission.
History
S 39M inserted by No 59 of 1988.
SECTION 39MA CERTIFICATE ABOUT INELIGIBLE FINANCE SCHEMES
39MA(1)
If:
(a)
expenditure has been incurred in connection with particular research and development activities by a company registered under section 39J or 39P; and
(b)
the Board is of the opinion that there was or is an ineligible finance scheme in relation to those research and development activities;
the Board may give a written certificate to the Commissioner:
(c)
stating that it is of that opinion; and
(d)
specifying the research and development activities concerned; and
(e)
giving the reasons for its opinion.
39MA(2)
The Board must not give a certificate under this section in relation to a company unless the Board has:
(a)
given a written notice to the company:
(i)
stating that the Board is considering giving the certificate; and
(ii)
specifying the activities to which the certificate would relate; and
(iii)
informing the company of the reasons why it is considering giving the certificate; and
(b)
invited the company to make a written submission to the Board in relation to the matter within 90 days; and
(c)
if such a submission is made within that period - had regard to the matters raised in the submission.
History
S 39MA inserted by No 224 of 1992.
SECTION 39N CERTIFICATE OF NON-COMPLIANCE
39N(1)
Where:
(a)
the Board requests a company to give to the Board particular information relating to activities carried on by or on behalf of the company, or activities in relation to which the company incurred expenditure, being information needed by the Board for the purpose of performing any of its functions, or the exercise of any of the powers, under this Part; and
(b)
the company does not give the information within a reasonable period;
the Board may, by notice in writing to the company, require the company to give the information to the Board within 30 days after the notice is received by the company.
History
S 39N(1) amended by No 164 of 2007, s 3 and Sch 11 items 74 and 75, by omitting "registered" after "the Board requests a" and inserting "or activities in relation to which the company incurred expenditure," after "on behalf of the company," in para (a), effective 25 September 2007. For application provision see note under s 39D.
39N(2)
If such a notice is given and the company fails to comply with the notice, the Board may give a certificate to the Commissioner stating that the company has failed to comply with a notice under this section in respect of the activities concerned.
39N(3)
A notice under subsection (1) shall:
(a)
state that, if the company fails to comply with the notice within the period specified in the notice, the Board may give a certificate under subsection (2) in respect of the activities to which the notice relates; and
(b)
set out the terms of subsections 73B(33A), 73BF(4) and 73BM(4) of the Income Tax Assessment Act 1936.
History
S 39N(3) amended by No 170 of 2001, s 3 and Sch 2 item 91 by inserting ", 73BF(4)" before "and 73BM(4)" in para (b), effective 30 June 2001.
S 39N(3) amended by No 170 of 2001, s 3 and Sch 2 item 50 by substituting "subsections 73B(33A) and 73BM(4)" for "subsection 73B(33A)" in para (b), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
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