Part 6CEO and staff

An Act to establish an Australian Trade and Investment Commission for the purpose of facilitating and promoting trade between Australia and foreign countries, and for related purposes ## Part 1—Preliminary #### 1 Short title This Act may be cited as the Australian Trade and Investment Commission Act 1985. #### 2 Commencement (1) Sections 1, 2, 3 and 97 shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation. #### 3 Interpretation (1) In this Act: > Australia includes the Territories to which this Act extends. > Australian organisation means: (a) any of the following entities carrying on a business in Australia: (i) a natural person; (ii) a partnership; (iii) a company incorporated or formed in Australia; or (b) an authority or body (including a body corporate and a corporation sole): (i) established for a purpose of the Commonwealth by, or in accordance with the provisions of, a law of the Commonwealth or of the Australian Capital Territory; or (ii) established for a purpose of a State by, or in accordance with the provisions of, a law of the State; and includes an Agency (within the meaning of the Public Service Act 1999) and a Department of the Public Service of a State, but does not include the Commission. > CEO means the Chief Executive Officer referred to in section 7B. > Commission means the body continued in existence by section 7. > corporate plan means a plan prepared by the CEO under section 35 of the Public Governance, Performance and Accountability Act 2013, and includes such a plan as varied under section 66 of this Act. > Department of State, in relation to the Northern Territory, means a Department of that Territory. > overseas development project means a project by way of: (a) the construction of works; or (b) the provision of services; or (c) the design, supply or installation of equipment or facilities; or (d) the testing in the field of agricultural practices; (including any necessary preliminary studies, investigations or planning) that is to be carried out in a foreign country. > State includes the Northern Territory. (2) In this Act, a reference to trade between Australia and foreign countries includes a reference to any transaction (including the rendering of a service) involving a consideration in money or money’s worth accruing from a person in the course of carrying on business or other activities outside Australia to a person carrying on business or other activities in Australia. (4) Unless the contrary intention appears, a reference in this Act to the Export Market Development Grants Act 1997 includes a reference to the Export Market Development Grants Act 1974 to the extent that that Act continues to apply because of item 2 of Schedule 1 to the Export Market Development Grants (Repeal and Consequential Provisions) Act 1997. (5) In any other Act, a reference to an employee of the Australian Trade and Investment Commission is a reference to a person engaged by the CEO under section 74 of the Public Service Act 1999. #### 4 Extension to Territories (1) Subject to subsection (2), this Act extends to all the Territories. (2) The Minister may, by notice published in the Gazette, declare that, on a day specified in the notice, this Act ceases to extend to an external Territory specified in the notice, and, where such a notice is published: (a) this Act does not, on or after that day, extend to the Territory so specified; (b) a reference in this Act to a Territory does not, on or after that day, include a reference to the Territory so specified; and (c) the Territory so specified shall, on and after that day, be deemed, for the purposes of this Act, to be a foreign country. #### 5 Application of Act outside Australia This Act applies both within and outside Australia. #### 6 Application of Export Market Development Grants Act 1997 not affected Nothing in section 4 or 5 shall be taken to affect the application of the Export Market Development Grants Act 1997. #### 6A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part 2—Establishment and function of the Australian Trade and Investment Commission #### 7 Australian Trade and Investment Commission (1) The body known immediately before the commencement of this subsection as the Australian Trade Commission is continued in existence as the Australian Trade and Investment Commission. > Note: See also subsection 25B(1) of the Acts Interpretation Act 1901. (2) The Commission consists of: (a) the CEO; and (b) the staff of the Commission referred to in section 60. (3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the Commission is a listed entity; and (b) the CEO is the accountable authority of the Commission; and (c) the following persons are officials of the Commission: (i) the CEO; (ii) the staff of the Commission referred to in section 60; (iii) consultants engaged under section 62; and (d) the purposes of the Commission include: (i) the function of the Commission referred to in section 7A; and (ii) the functions of the CEO referred to in section 8. #### 7A Function of the Commission The function of the Commission (other than the CEO) is to assist the CEO in the performance of his or her functions. ## Part 3—Establishment and functions of the CEO #### 7B The Chief Executive Officer There is to be a Chief Executive Officer of the Commission. > Note: For the appointment, terms and conditions of the CEO, see Division 1 of Part 6. #### 8 Functions of the CEO (1) The functions of the CEO are: (a) to facilitate and encourage trade between Australia and foreign countries (in this section referred to as Australian export trade) by: (i) representing the trading and commercial interests of Australia in foreign countries; and (ii) assisting, directly or indirectly, Australian organisations in trade negotiations; and (iii) promoting, or participating in or co‑ordinating projects to promote, Australian export trade; and (iv) obtaining, and making available to Australian organisations, information relating to current or future opportunities for Australian export trade, including opportunities for involvement in overseas development projects; and (v) supporting and facilitating investment in foreign countries, and facilitating investment in Australia, where that investment is likely to enhance opportunities for Australian export trade; and (vi) carrying out, or assisting other persons to carry out, or participating with other persons in carrying out, in whole or in part, overseas development projects, in circumstances where that course of action will benefit Australian organisations; and (viii) administering the Export Market Development Grants Act 1997; and (ix) developing and administering schemes to provide assistance in the development of markets in foreign countries; and (x) facilitating access by persons to Departments of State of the Commonwealth or of a State and to instrumentalities established by or under a law of the Commonwealth or of a State where that access is likely to enhance opportunities for Australian export trade; and (b) to do any other act or thing required or permitted by: (i) this Act; or (ii) any other Act; or (iii) an instrument under an Act; to be done by the CEO; and (c) to act, outside Australia, as agent for Departments of State of the Commonwealth or for instrumentalities established by or under a law of the Commonwealth. (2) Without limiting subsection (1), the functions of the CEO include developing and administering policies relating to tourism (including domestic tourism). (3) The CEO may perform his or her functions under subsection (2) to the extent only that they are not in excess of the functions that may be conferred on the CEO by virtue of any of the legislative powers of the Parliament, and, in particular, may perform his or her functions under that subsection: (a) for purposes related to external affairs; and (b) in the course of, or in relation to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State; and (c) for purposes related to a Territory; and (d) by means of a communication using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; and (e) for purposes related to the collection, compilation, analysis, use and dissemination of statistics; and (f) for purposes related to a corporation to which paragraph 51(xx) of the Constitution applies; and (g) for purposes related to lighthouses, lightships, beacons and buoys; and (h) for purposes related to matters incidental to the execution of the legislative powers of the Parliament or the executive power of the Commonwealth; and (i) for purposes related to a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970; and (j) for purposes related to the executive power of the Commonwealth; and (k) for purposes related to the granting of financial assistance to a State on such terms and conditions as the Parliament thinks fit; and (l) for purposes related to matters that are peculiarly adapted to the government of a nation and that cannot otherwise be carried on for the benefit of the nation; and (m) by way of providing a service, if the provision of the service utilises the CEO’s spare capacity and does not impede the CEO’s capacity to perform his or her other functions. #### 9 Duties (1) The CEO must perform his or her functions under subsection 8(1) in such a manner as will best assist in the development of trade between Australia and foreign countries. (2) In performing his or her functions, the CEO must: (a) comply with any directions given to the CEO under section 10; and (b) have regard to the need to provide services as efficiently and economically as possible; and (c) in relation to his or her functions under subsection 8(1), have regard to: (i) the desirability of improving and extending the range and accessibility of advice, assistance and financial support available (whether through the Commission and the CEO or otherwise) to persons involved, or likely to be involved, either directly or indirectly, in trade between Australia and foreign countries; and (ii) Australia’s obligations under international agreements. #### 9A Overseas exercise of CEO’s powers The powers of the CEO may be exercised, on behalf of the Commonwealth, in Australia or elsewhere. #### 9B CEO may charge fees The CEO may charge fees for the provision of services, or the performance of other work, in connection with the performance of his or her functions under this Act. #### 10 Power of Minister to give directions (1) The Minister may give to the CEO, in writing, such directions with respect to the performance of his or her functions, and the exercise of his or her powers, under this Act, as appear to the Minister to be necessary. > Note: A direction under this section is included in the annual report: see section 92. (3) Nothing in subsection (1) shall be construed as empowering the Minister to determine that the CEO should deal in a particular manner with a particular person, or with a particular application, grant agreement or grant, under the Export Market Development Grants Act 1997. (4) A direction given by the Minister under subsection (1) must not prejudicially affect an application made, or grant agreement entered into, under the Export Market Development Grants Act 1997. (5) This section does not affect the operation of any other provision of this Act or of any other Act that confers a power upon the Minister to give directions to the CEO. (6) A direction under this section is not a legislative instrument. ## Part 6—CEO and staff ### Division 1—Chief Executive Officer #### 51 Appointment of Chief Executive Officer (1) The CEO is to be appointed by the Minister by written instrument. (2) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (3) An appointment under this section is not ineffective merely because of a defect or irregularity in relation to the appointment. Terms and conditions (4) The CEO holds office on the terms and conditions (if any) in respect of matters not provided for by this Act that are determined by the Minister. #### 52 Appointment to be full‑time The CEO holds office on a full‑time basis. #### 54 Remuneration and allowances (1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed. (2) The CEO is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 55 CEO not to engage in paid employment The CEO must not engage in paid employment outside the duties of his or her office except with the Minister’s approval. #### 56 Acting CEO The Minister may appoint a person to act as the CEO: (a) during a vacancy in the office of the CEO (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the CEO is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 57 Leave of absence (1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. #### 58 Resignation The CEO may resign from office by giving the Minister a written resignation that has been signed by the CEO. #### 59 Termination (1) The Minister may terminate the appointment of the CEO for misbehaviour or physical or mental incapacity. (2) The Minister may terminate the appointment of the CEO if: (a) the CEO: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) the CEO engages, except with the Minister’s approval, in paid employment outside the duties of his or her office. (3) The Minister must terminate the appointment of the CEO if, in the Minister’s opinion, the performance of the CEO has been unsatisfactory for a significant period of time. ### Division 2—Staff of the Commission #### 60 Staff of the Commission (1) The staff of the Commission are to be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a) the CEO and the staff of the Commission together constitute a Statutory Agency; and (b) the CEO is the Head of that Statutory Agency. #### 61 Locally engaged employees To avoid doubt, the CEO may, under section 74 of the Public Service Act 1999, engage persons overseas to perform duties overseas as employees. #### 62 Consultants The CEO may, on behalf of the Commonwealth, engage consultants to perform services for the CEO related to the CEO’s functions. ## Part 7—Corporate plans #### 65 Approval of corporate plans (1) Each corporate plan shall be submitted to the Minister for approval before the intended day of commencement of the period to which the corporate plan relates and shall not come into force until: (a) the day on which it is approved by the Minister; or (b) the day of commencement of the period to which it relates; whichever is the later. (2) Upon the coming into force of a corporate plan under subsection (1), any corporate plan that is already in force ceases to be in force. #### 66 Variation of corporate plans (1) The CEO may, at any time, review a corporate plan, whether or not it has come into force, and consider whether a variation to the plan is necessary. (2) The CEO may, with the approval of the Minister, vary a corporate plan. (3) The Minister may, at any time, request the CEO to vary a corporate plan, whether or not it has come into force. (4) Where the Minister requests a variation of a corporate plan, the CEO shall, with the approval of the Minister, vary that plan accordingly. (5) Where a variation of a corporate plan is approved by the Minister after the plan has come into force, the plan as so varied shall continue in force on and after the day on which the variation is so approved. ## Part 9—Miscellaneous #### 90 Delegations by Minister and CEO (1) The Minister may, in writing, delegate all or any of the Minister’s functions or powers under this Act, other than the Minister’s powers under sections 65 and 66, to the CEO. > Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. (2) The CEO may, in writing, delegate all or any of the CEO’s functions or powers under this Act to a member of the staff of the Commission referred to in section 60. > Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. (3) The CEO may, in writing, delegate all or any of the CEO’s functions or powers under the Export Market Development Grants Act 1997, or the rules made under that Act, to: (a) a member of the staff of the Commission referred to in section 60 of this Act; or (b) an APS employee in a non‑corporate Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position. > Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations. (4) In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the person who delegated the function or power. #### 92 Annual reports The annual report prepared by the CEO and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include the following: (a) information about the Commission’s operations under the Export Market Development Grants Act 1997 during the period; (b) particulars of all directions given by the Minister to the CEO under subsection 10(1) during the period, other than any direction that includes a statement to the effect that the direction is not to be disclosed: (i) for reasons of national security; or (ii) because its disclosure would have an adverse effect on the financial interests or property interests of the Commonwealth or of an instrumentality of the Commonwealth. #### 94 Secrecy (1) This section applies to a person who is or has been: (a) the CEO; or (b) a member of the staff of the Commission referred to in section 60; or (c) a consultant engaged under section 62. (2) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act: (a) make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first‑mentioned person by reason of his or her employment; or (b) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act. Penalty: Imprisonment for 12 months or 20 penalty units, or both. (3) Subsection (2) does not apply to the disclosure of information, or the production of a document, to the Minister, to the Secretary of the Department, or to an officer of the Department designated by the Secretary. (4) Subsection (2) does not prevent a person to whom this section applies from communicating, or making available to another person: (b) the following information relating to payments of grants authorised by the CEO under the Export Market Development Grants Act 1997 or the Export Market Development Grants Act 1974: (i) the name and address of a person to whom the CEO has authorised a payment; (ii) the amount of a grant to a person; (iii) the industry to which a grant relates; and (c) any information of a statistical nature relating to the making of grants under the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997. (5) A person to whom this section applies shall not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of, or of a prosecution for an offence against, this Act, the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997. (6) A person to whom information is communicated under subsection (3) and an employee or other person under that person’s control are, in respect of that information, entitled to rights and privileges, and subject to obligations and liabilities, under subsections (2) and (5) as if they were persons referred to in subsection (1). (7) In this section: > court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. > produce includes to permit access to. #### 97 Regulations The Governor‑General may make regulations, not inconsistent with this Act, 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; and in particular prescribing penalties, not exceeding a fine of 5 penalty units, for offences against the regulations.