Commonwealth: Industry Research and Development Amendment Act 1999 (Cth)

Industry Research and Development Amendment Act 1999 No. 15, 1999 An Act to amend the Industry Research and Development Act 1986, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. 4 Treatment of certain applications lodged with the Australian Taxation Office 5 Effect of amendments relating to members of the Industry Research and Development Board and its committees Schedule 1—Amendment of the Industry Research and Development Act 1986 Industry Research and Development Amendment Act 1999 No. 15, 1999 An Act to amend the Industry Research and Development Act 1986, and for related purposes [Assented to 9 April 1999] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Industry Research and Development Amendment Act 1999. 2 Commencement This Act commences on the day on which it receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 Treatment of certain applications lodged with the Australian Taxation Office (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.). (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. (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) 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. (5) In this section: application includes a copy of an application. Board means the Industry Research and Development Board. 5 Effect of amendments relating to members of the Industry Research and Development Board and its committees The amendments made by items 1, 2, 3, 4 and 5 of Schedule 1 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 the commencement of this section. Schedule 1—Amendment of the Industry Research and Development Act 1986 1 Section 10 Omit "5", substitute "3". 2 At the end of section 10 Add: (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). (3) Before the Governor‑General 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. 3 Subsection 22(2) After "appointed by the Minister", insert "in accordance with subsections (2A), (2B) and (2C)". 4 Subsection 22(2) After "office", insert ", for the periods for which they are appointed,". 5 After subsection 22(2) Insert: (2A) A member of a committee is to be appointed for a particular period, not exceeding 3 years, determined by the Minister. (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). (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. 6 At the end of section 25 Add: (2) The Board and committees may also be assisted by consultants, or other persons, engaged by the Commonwealth. Note: The heading to section 25 is replaced by the heading "Staff, consultants etc.". 7 Section 39B Omit "Companies Act 1981", substitute "Corporations Law". 8 After subsection 39ED(6) Insert: (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. 9 After section 39EE Insert: 39EF Board's power to amend or revoke provisional certificate on its own initiative (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). (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 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. (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. (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. (5) If the Board revokes the provisional certificate under subsection (4), the provisional certificate is taken never to have been given. (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. 10 After section 39F Insert: 39FA Notices about continuing registration of Australian research agencies (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. (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. (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. 11 At the end of subsection 39G(6) Add: Note: The registration of a research agency may also be cancelled by force of subsection 39FA(3). 12 Subsection 39J(1A) Omit "and 39JE", substitute ", 39JE and 39JF". 13 Paragraph 39J(1A)(c) After "or a later year of income", insert "that ends before the commencement of paragraph (d)". 14 At the end of subsection 39J(1A) Add: ; 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. 15 After subsection 39J(5) Insert: (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. (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. 16 Paragraph 39JD(1)(b) Repeal the paragraph, substitute: (b) contain the information required by the application form in respect of the research and development 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 carrying on the activities, maintained records that substantiate the company's carrying on of the activities; and 17 At the end of subsection 39JD(1) Add: Note: Requirements in the application form or the regulations for the provision of information in respect of an application may be different for different situations. 18 At the end of section 39JD Add: (4) In this section: application form means the appropriate form approved by the Board under subsection (2). 19 Before subsection 39JE(1) Insert: (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). Note: The heading to section 39JE is altered by adding at the end "if application otherwise subject to a 6 month limit". 20 Subsection 39JE(1) Omit "the 1995‑96 year of income, or a later year of income", substitute "a year of income of the company to which this section applies". 21 After section 39JE Insert: 39JF Registration if application for registration made after expiry of period for making application (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. (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). (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. (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). 22 At the end of paragraph 39M(1)(b) Add: 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; 23 Subsection 39S(1) After "subsection 39EE(3),", insert "subsection 39EF(2) or (4),". 24 Subsection 39S(1) Before "39HH", insert "39FA,". 25 At the end of subsection 39S(1) Add: Note: A decision of the Board whether to register a company as mentioned in subsection 39JF(1) is a decision of the Board under section 39J to which this section applies. 26 At the end of paragraph 47(2)(a) Add "or". 27 After paragraph 47(2)(a) Insert: (aa) a person employed as a member of staff of the Minister under section 13 or 20 of the Members of Parliament (Staff) Act 1984; or 28 At the end of section 47 Add: (3) In this section: officer of the Department includes a consultant or other person providing services to the Department. [Minister's second reading speech made in— House of Representatives on 3 December 1998 Senate on 22 March 1999] (195/98