Part 3Certificates

An Act to establish the Development Allowance Authority, and for related purposes Chapter 1—Preliminary #### 1 Short title This Act may be cited as the Development Allowance Authority Act 1992. #### 2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) If the day (TLAA day) on which the Taxation Laws Amendment Act (No. 3) 1992 receives the Royal Assent is a later day than the day on which this Act receives the Royal Assent, Parts 2 to 10 (inclusive), 12, 13, 14 and 15 commence on the TLAA day. #### 2A 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. Chapter 3—Infrastructure borrowings ## Part 1—Preliminary #### 93A Object The object of this Chapter and the infrastructure borrowings provisions of the Income Tax Assessment Act 1936 is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities. However, the incentives have been terminated for new cases by the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997. #### 93B Simplified outline of scheme of Chapter The following is a simplified outline of the scheme of this Chapter: (a) a person may apply to the Development Allowance Authority (the DAA) for the issue of a certificate in relation to a proposed borrowing that the person considers to be an infrastructure borrowing; Note: As a result of amendments made by the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, no new applications can be made. (b) the DAA will issue the certificate if it is satisfied that the borrowing is an infrastructure borrowing and that certain other criteria are met; (c) it is a condition of the issue of the certificate that the holder must use the money borrowed in the way proposed in the person’s application and must comply with certain other requirements; (d) if the certificate holder wishes to transfer to another person all of its interests and liabilities in relation to the borrowing or any facilities acquired or constructed with the money borrowed and certain criteria are met, the DAA must agree to transfer the certificate; (e) the DAA may cancel the certificate if the conditions applying to it are contravened, or if the holder fails to comply with certain other requirements of the Chapter. In such a case, the holder will be liable to pay an amount that recoups some or all of the tax benefits of the certificate. #### 93C Example of how this Chapter works \[Typical example—borrowing to finance a tollway\] (1) This section sets out an example of how this Chapter works in a typical case involving a borrowing to construct a tollway. \[Step 1—proposal\] (2) By December 1994, a non‑exempt public company has developed a proposal to construct a tollway in Australia that it intends to operate for at least 25 years after it becomes income‑producing. The estimated cost of the tollway is $600 million, of which the company intends to borrow $400 million by a public bond issue at 8% per annum over 10 years. The company intends to build the tollway in 2 stages: stage 1, commencing in November 1995 and continuing until November 1998, involving the major earthworks stage 2, commencing in February 1999 and ending at the end of 2001, involving construction of bridges, road pavement, stabilisation of embankments and construction of related facilities for toll collection and other staff. \[Step 2—application to DAA\] (3) In January 1995, the company applies to the DAA for the issue of a certificate in relation to the borrowing. The application sets out details of the proposed borrowing and expenditure and other relevant matters. \[Step 3—action by DAA\] (4) The DAA considers the application and determines that the criteria in the Chapter for the issue of a certificate are met. (The criteria relate to such things as the nature of the borrower and the facility, and the proposed public use and charging regime.) \[Step 4—issue of certificate\] (5) In March 1995, the applicant gives the DAA an undertaking that it will comply with its obligations if the certificate is issued, and the DAA issues the certificate. \[Step 5—the bond issue\] (6) The bond issue takes place in May 1995. Interest paid to bond holders is exempt from income tax or rebatable. The interest is not an allowable deduction for the company. \[Completion and operation of tollway\] (7) The borrowing, construction and use of the tollway all go ahead as planned. ## Part 2—Interpretation: Infrastructure borrowings etc. #### 93D Interpretation \[List of terms\] (1) In this Chapter: > application means an application under Part 3. > approved means approved in writing by the DAA. > assessable income has the same meaning as in the Tax Act. > associate has the same meaning as in subsection 26AAB(14) of the Tax Act. > Australia has the same meaning as in Subdivision B of Division 3 of Part III of the Tax Act. > borrower requirement period, in relation to a direct infrastructure borrowing, means the period from the time of the borrowing until: (a) in a case to which subsection 93K(2) applies—the end of the 25 year period mentioned in that subsection; or (b) in a case to which subsection 93K(3) or (4) applies—the time of the transfer mentioned in that subsection. > borrowing means any form of borrowing, whether secured or unsecured, and includes the raising of funds by the issue of a bond, debenture, discounted security or other document evidencing indebtedness. > borrowings cut‑off time means 12 pm, by legal time in the Australian Capital Territory, on 14 February 1997. > certificate means a certificate issued under Part 3. > certificate holder requirement period, in relation to the holder of a certificate that applies either to a direct infrastructure borrowing or to a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing, means: (a) if the holder is the person to whom the certificate was issued—the borrower requirement period; or (b) if the holder is a person to whom the certificate was transferred under section 93V and: (i) subsection 93K(2) applied to the direct infrastructure borrowing; or (ii) subsection 93K(3) or (4) applied to the direct infrastructure borrowing, where the transfer mentioned in that subsection has not yet taken place; so much of the borrower requirement period as occurs after the transfer of the certificate to the holder; or (c) if: (i) the holder is a person to whom the certificate was transferred under section 93V; and (ii) subsection 93K(3) or (4) applied to the direct infrastructure borrowing; and (iii) the transfer mentioned in that subsection has taken place; so much of the period of 25 years, following the first use of any of the facilities concerned after their construction or acquisition under the borrowing, as occurs after the transfer of the certificate to the holder. > construct includes extend, improve or up‑grade. > corporate limited partnership has the same meaning as in section 94D of the Tax Act. > Crown lease means: (a) a lease of land; or (b) an easement in connection with land; or (c) any other right, power or privilege over, or in connection with, land; if the lease, easement, right, power or privilege was granted by: (d) the Commonwealth, a State or a Territory; or (e) an authority of the Commonwealth, a State or a Territory, where, assuming that the authority derived income at the time of the grant, that income would be exempt from income tax under the Tax Act because of a relevant exempting provision. > DAA means the Development Allowance Authority appointed under Chapter 4. > direct infrastructure borrowing has the meaning given by section 93F. > government body means: (a) the Commonwealth, a State or a Territory; or (b) a body to which section 50‑25 of the Income Tax Assessment Act 1997 applies; or (c) an STB (within the meaning of Division 1AB of Part III of the Income Tax Assessment Act 1936) the income of which is wholly exempt from tax. > indirect infrastructure borrowing has the meaning given by section 93G. > infrastructure borrowing means a direct infrastructure borrowing, an indirect infrastructure borrowing or a refinancing infrastructure borrowing. > infrastructure facility has the meaning given by section 93L. > listed company means a company any of the shares of which are listed for quotation in the official list of a stock exchange in Australia or elsewhere. > non‑exempt resident company means an incorporated body (not in the capacity of trustee), where: (a) the body is a resident; and (b) the body’s income is not exempt from income tax under the Tax Act because of a relevant exempting provision. > non‑exempt resident corporate limited partnership, in relation to a year of income, means a corporate limited partnership (not in the capacity of trustee) in relation to the year of income, where: (a) the partnership is a resident; and (b) the partnership’s income is not exempt from income tax under the Tax Act because of a relevant exempting provision. > prescribed investment means an investment of a kind prescribed by the regulations for the purposes of this definition. > refinancing infrastructure borrowing has the meaning given by section 93H. > related facility has the meaning given by section 93M. > relevant exempting provision has the meaning given by subsection 121F(1) of the Income Tax Assessment Act 1936. > resident has the same meaning as in the Tax Act. > Tax Act means the Income Tax Assessment Act 1936. > year of income has the same meaning as in the Tax Act. \[References to subsection 93K(3) or (4) applying\] (2) A reference in this Chapter, in relation to a certificate, to subsection 93K(3) or (4) applying includes a reference to that subsection applying in connection with a variation of a condition applying to the certificate under section 93T. \[Ownership where Crown lease\] (3) For the purposes of references in sections 93K, 93R and 93S to a borrower or holder of a certificate intending at a particular time (the intention time) to own facilities at or until a particular time, the borrower or holder is taken to intend at the intention time to own, at or until the particular time, facilities that are intended to be, or that are, a fixture on land that is the subject of a Crown lease if: (a) if the Crown lease is a lease of land granted under a statutory law of the Commonwealth, a State or a Territory—it can reasonably be expected, at the intention time, that the Crown lease will run, or (because of law, custom or otherwise) be extended or renewed to run, until at least the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing; or (b) in any other case—at the time (the relevant time) that is the later of the intention time and the time when the first of the facilities begins to be constructed under the borrowing: (i) if the term of the lease will not end before the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing—both the lessor and the lessee intend that the lessee or, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, the other person will continue to hold the lease throughout the whole of that period on the same terms and conditions as those on which the lease is held at the relevant time; or (ii) if the term of the lease will end before the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing: (A) the lessee has an option that, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, is transferable to the other person mentioned in that subsection, to renew the lease on the terms and conditions referred to in subparagraph (i) for a period that will not end, or has successive options to renew the lease on those terms and conditions for periods the last of which will not end, before the end of the period of 25 years; and (B) both the lessor and the lessee intend that the lessee or, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, the other person mentioned in that subsection, will continue to hold the lease throughout the whole of the 25 year period on the same terms and conditions as those on which the lease is held at the relevant time. #### 93E Kinds of infrastructure borrowing There are 3 kinds of infrastructure borrowing: (a) a direct infrastructure borrowing (see section 93F); and (b) an indirect infrastructure borrowing (see section 93G); and (c) a refinancing infrastructure borrowing (see section 93H). #### 93F Direct infrastructure borrowing A direct infrastructure borrowing is a borrowing of money where: (a) the borrower requirements set out in section 93I are met; and (b) the requirement relating to the use of the borrowed money, set out in section 93J, is met; and (c) the requirement relating to the use of facilities on which the borrowed money is spent, set out in section 93K, is met. #### 93G Indirect infrastructure borrowing An indirect infrastructure borrowing is a borrowing of money by an incorporated body where: (a) the borrower requirements set out in section 93I are met; and (b) the body intends, at the time of the borrowing, to use the borrowed money only: (i) by lending it to another person where that loan will constitute the whole or part of a direct infrastructure borrowing by that other person in relation to which a certificate is in force; and (ii) if it is not able to be lent to the other person immediately after it is borrowed—by investing it in a prescribed investment until it is. #### 93H Refinancing infrastructure borrowing \[Meaning of refinancing infrastructure borrowing\] (1) A refinancing infrastructure borrowing is a borrowing of money where: (a) the borrower requirements set out in section 93I are met; and (b) the borrower intends, at the time of the borrowing, to use the money borrowed only: (i) to repay the whole or part of any of the following borrowings: (A) a direct infrastructure borrowing; or (B) an indirect infrastructure borrowing; or (C) a borrowing that is a refinancing infrastructure borrowing because of another application of this subsection; where a certificate held by the borrower is in force in relation to the borrowing to be wholly or partly repaid; and (ii) if the money is not able to be used to make the repayment immediately after it is borrowed—by investing it in a prescribed investment until it is. \[Interpretive provision\] (2) For the purposes of references in this Chapter, a refinancing infrastructure borrowing relates to a direct infrastructure borrowing or to an indirect infrastructure borrowing if the repayment mentioned in subparagraph (1)(b)(i) is of: (a) the direct infrastructure borrowing or the indirect infrastructure borrowing, as the case may be; or (b) another refinancing infrastructure borrowing that, under a previous application of this subsection, relates to the direct infrastructure borrowing or the indirect infrastructure borrowing, as the case may be. #### 93I Infrastructure borrowings—borrower requirements \[Borrower requirements\] (1) For a borrowing to be an infrastructure borrowing, the requirements of this section must be met. \[Basic requirements\] (2) The borrower must: (a) be: (i) in any case—an incorporated body (not in the capacity of trustee) at the time of the borrowing or a corporate limited partnership (not in the capacity of trustee) in relation to the year of income in which the borrowing takes place; or (ii) in the case of a direct infrastructure borrowing or a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing—a public trading trust (within the meaning of section 102R of the Tax Act), in relation to the year of income in which the borrowing takes place; and (b) where the borrower is an incorporated body or a corporate limited partnership and the borrowing is a direct infrastructure borrowing or a refinancing infrastructure borrowing that relates to such a direct infrastructure borrowing—at the time of the borrowing, intend to be an incorporated body (not in the capacity of trustee) throughout the borrower requirement period, or a corporate limited partnership (not in the capacity of trustee) throughout each year of income in which any part of the borrower requirement period occurs; and (c) where the borrower is a trust to which subparagraph (a)(ii) applies—at the time of the borrowing, intend to be such a trust in relation to each year of income in which any part of the borrower requirement period occurs; and (d) where the borrower is an incorporated body or a trust to which subparagraph (a)(ii) applies—not be making the borrowing in partnership with anyone else; and (e) in any case—subject to subsection (4), not be a government body or government owned (see subsection (3)) at the time of the borrowing. \[Meaning of government owned\] (3) For the purposes of paragraph (2)(e): (a) an incorporated body is government owned if: (i) it is limited by shares; and (ii) a government body is the beneficial owner of at least 50% of the total rights: (A) to dividends paid by the body; or (B) to distributions of capital of the body on winding‑up or otherwise; or (C) to vote at meetings of shareholders of the body; and (b) a corporate limited partnership is government owned if a government body is the beneficial owner of more than 50% of the interests in profits or capital of the partnership; and (c) a trust is government owned if a government body is the beneficial owner of more than 50% of the interests in income or corpus of the trust. \[Paragraph (2)(e) not to apply to certain bodies\] (4) Paragraph (2)(e) does not apply to a borrower if the borrower is, in accordance with criteria published in the Gazette by the Minister for the purposes of this subsection, a body that operates on a commercial basis. (4A) In the case of: (a) an indirect infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing; the borrower must be: (c) a non‑exempt resident company at the time of the borrowing; or (d) a non‑exempt resident corporate limited partnership in relation to the year of income in which the borrowing takes place. (4B) If the borrower is an incorporated company (not in the capacity of trustee) and the borrowing is: (a) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by paragraph (a); the borrower must, at the time of the borrowing, intend to be a non‑exempt resident company throughout the applicable borrower requirement period. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. (4C) If the borrower is a corporate limited partnership (not in the capacity of trustee) in relation to the year of income in which the borrowing takes place and the borrowing is: (a) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by paragraph (a); the borrower must, at the time of the borrowing, intend to be a non‑exempt resident corporate limited partnership in relation to each year of income in which any part of the applicable borrower requirement period occurs. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. \[Direct infrastructure borrowings by listed companies\] (5) If: (a) the infrastructure borrowing is: (i) a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing; by an incorporated body limited by shares; and (b) the incorporated body is a listed company; and (c) at the time of the borrowing, a person is the beneficial owner of shares carrying more than half the voting rights in the incorporated body; that person must not, at the time of the borrowing, intend to dispose of enough of those shares to cause the number of voting rights to fall to or below half during the borrower requirement period in relation to the direct infrastructure borrowing. \[Direct infrastructure borrowings by unlisted companies\] (6) If: (a) the infrastructure borrowing is: (i) a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing; by an incorporated body limited by shares; and (b) the incorporated body is not a listed company; and (c) at the time of the borrowing, a person either alone or together with an associate or associates is the beneficial owner of shares carrying more than half the voting rights in the incorporated body; that person, or that person and the associates, must not intend, at the time of the borrowing, to dispose of enough of those shares to cause the number of voting rights to fall to or below half during the borrower requirement period in relation to the direct infrastructure borrowing. #### 93J Direct infrastructure borrowing—requirement relating to spending of borrowed money \[Spending requirement\] (1) For a borrowing to be a direct infrastructure borrowing, the borrower must, at the time of the borrowing, intend to use the borrowed money only: (a) by spending it on: (i) the construction of one or more infrastructure facilities; or (ii) subject to subsection (2), the construction or acquisition of one or more related facilities; or (iii) subject to subsection (3), the payment of interest, or of amounts in the nature of interest, on a direct infrastructure borrowing; and (b) if it is unable to be spent immediately after it is borrowed—by investing it in a prescribed investment until it is. \[Spending on related facilities\] (2) Spending money on the construction or acquisition of a related facility only qualifies under subsection (1) if: (a) the borrower also intends to spend some of the borrowed money as mentioned in paragraph (1)(a) on one or more of the infrastructure facilities to which the related facility relates; or (b) the following conditions are satisfied: (i) the borrower already owns the infrastructure facility or facilities to which the related facility relates; and (ii) the requirements of section 93K are satisfied in relation to that infrastructure facility or those infrastructure facilities (assuming the money were also to be spent on them) as well as the related facility at the time of the borrowing; and (iii) the borrower intends to begin the construction, or make the acquisition of the related facility, not later than 10 years after: (A) if the borrower constructed the infrastructure facility or facilities to which it relates—the beginning of construction of the infrastructure facility, or the first of the infrastructure facilities, to which it relates; or (B) if the borrower acquired the infrastructure facility or facilities to which it relates—the time of acquisition of the infrastructure facility, or the first of the infrastructure facilities, to which it relates. \[Spending on the payment of interest\] (3) Spending money on the payment of interest, or of amounts in the nature of interest, only qualifies under subsection (1): (a) to the extent that the interest or those amounts relate to that part of the period of the borrowing that occurs during the period (the construction period) in which any of the facilities referred to in paragraph (1)(a), or any of the facilities referred to in paragraph (1)(b) that are being constructed, are under construction; and (b) if the payment is made during the construction period. \[Exclusions\] (4) A borrowing does not qualify for the purposes of subsection (1) if the borrower intends to spend the money borrowed: (a) on entering into or acquiring a lease; or (b) on acquiring land on which there is a building or structure that is to form part of the infrastructure facility or the related facility concerned; or (c) on refinancing a loan. \[Facility can be part of or related to other facilities\] (5) It does not matter for the purposes of subsection (1) if the infrastructure facility is to be part of or related to any other infrastructure facility of any person. \[acquisition includes dismantling etc.\] (6) In paragraph (1)(b), acquisition includes dismantling, transportation or installation in connection with the acquisition. #### 93K Direct infrastructure borrowing—requirement relating to use or sale of facilities on which borrowed money is to be spent \[3 kinds of intention qualify\] (1) For the borrowing to be a direct infrastructure borrowing, it is also necessary that, at the time of the borrowing, the borrower has an intention of the kind set out in subsection (2), (3) or (4). \[Intention to use\] (2) One intention that the borrower may have for the purposes of subsection (1) is that: (a) it will own, use principally for gaining or producing assessable income and effectively control the use of, the facilities on which the money will be spent (other than by leasing them); and (b) the ownership, use for gaining or producing assessable income and effective control will continue for at least 25 years after the first such use by the borrower of any of the facilities concerned after their construction or acquisition; and (c) it will not do anything that will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned. \[Intention to sell\] (3) Another intention that the borrower may have for the purposes of subsection (1) is that: (a) it will own the facilities on which the money will be spent; and (b) after constructing or acquiring the facilities on which the money will be spent and before they are used, it will transfer all of its rights, interests and obligations in respect of the facilities to another person who will be able to satisfy the requirements of section 93V for the transfer of the borrower’s certificate. It is not necessary that the identity of the person be known by the borrower at the time of the borrowing. \[Intention to use before selling\] (4) Another intention that the borrower may have for the purposes of subsection (1) is that: (a) it will, after constructing or acquiring the facilities on which the money will be spent, own, use principally for gaining or producing assessable income and effectively control the use of, those facilities (other than by leasing them) for a period less than 25 years after the first such use by the borrower of any of those facilities after their construction or acquisition; and (b) it will then transfer all of its rights, interests and obligations in respect of the facilities to another person who will be able to satisfy the requirements of section 93V for the transfer of the borrower’s certificate; and (c) it will not do anything during the period before the transfer that will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of those facilities. It is not necessary that the length of the period or the identity of the person be known at the time of the borrowing. #### 93L Infrastructure facilities \[7 kinds of facility\] (1) There are 7 kinds of infrastructure facility. \[Land transport facility\] (2) One kind of infrastructure facility is a land transport facility, that is to say, a road, tunnel, bridge, or railway line, or a combination of these, in Australia that is to be used for the transport of the public or their goods at a charge to them (whether the transport is by the member of the public concerned or by another person). \[Air transport facility\] (3) Another kind of infrastructure facility is an air transport facility, that is to say, a runway, and any associated taxiway and runway apron, in Australia that is to be used by aircraft transporting the public or their cargo at a charge to them. \[Seaport facility\] (4) Another kind of infrastructure facility is a seaport facility, that is to say, a wharf, or dock, in Australia for the public to embark or disembark, or for loading or unloading their cargo, onto or from seagoing vessels, where there is a charge to the public for the transport of the public or their cargo on the vessels. \[Electricity generation, transmission or distribution facility\] (5) Another kind of infrastructure facility is an electricity generation, transmission or distribution facility, that is to say, any one, or combination of 2 or more, of the following facilities: (a) an electricity generation facility on land in Australia; (b) an electricity transmission facility, where the electricity generation facility concerned is on land in Australia; (c) an electricity distribution facility on land in Australia; where the electricity generated, transmitted or distributed is to be principally for sale to the public either directly by the operator of the facility or indirectly through other persons. \[Gas pipeline facility\] (6) Another kind of infrastructure facility is a gas pipeline facility, that is to say, the whole or part of a pipeline that is to be used for transporting gas from a processing plant on land in Australia principally for sale to the public either directly by the operator of the facility or indirectly through other persons. \[Water supply facility\] (7) Another kind of infrastructure facility is a water supply facility, that is to say, any one, or combination of 2 or more, of the following: (a) dams, weirs, reservoirs or tanks that are to be used for storing, and regulating the flow of, water for public consumption, or other use by the public, at a charge to them; (b) bores that are to be used for extracting water for public consumption, or other use by the public, at a charge to them; (c) channels or pipelines that are to be used: (i) for supplying water for public consumption, or other use by the public, at a charge to them; or (ii) for carrying water between dams or other storage places from which it is to be supplied through channels or pipelines for public consumption, or other use by the public, at a charge to them; (d) pumps and associated structures that are to be used: (i) in extracting water from bores covered by paragraph (b); or (ii) for pumping water along channels or pipelines covered by paragraph (c); (e) equipment and structures that are to be used for treating water that is to be supplied to the public through pipelines at a charge to them, to make it fit for the public to drink. \[Sewage or wastewater facility\] (8) Another kind of infrastructure facility is a sewage or wastewater facility, that is to say: (a) equipment, excavations and structures that are to be used for treating, at a charge to the public, sewage, or other wastes in water, produced by the public: (i) to reduce the damage caused by its disposal in the natural environment; or (ii) to make any component of the things treated suitable for re‑use; or (b) channels, drains or pipelines for carrying sewage, or other wastes in water, produced by the public to or from the equipment and structures covered by paragraph (a); or (c) both of these. #### 93M Related facilities \[Basic test\] (1) Related facilities are facilities in Australia that are reasonably necessary for an infrastructure facility to be able to operate for the purpose for which it was constructed. \[Examples\] (2) The following are examples of facilities that are related facilities in respect of an infrastructure facility, provided that they pass the test in subsection (1): (a) plant and other equipment (for example, rolling stock in the case of a railway) for use in operating the infrastructure facility; (b) buildings or other structures from which staff are to operate the infrastructure facility; (c) buildings or other structures for storing freight, cargo, plant, fuel, stores or equipment; (d) stations or passenger or freight terminals; (e) subject to paragraphs (4)(a) and (6)(a), maintenance facilities. \[Access roads etc. excluded\] (3) In the case of any infrastructure facility, a road, bridge, tunnel or railway to provide access to the infrastructure facility is not a related facility (or part of the infrastructure facility itself). \[Dry‑docks etc. excluded\] (4) In the case of a seaport facility, the following are not related facilities (or part of the infrastructure facility itself): (a) a dry‑dock or other facility for repair or maintenance of vessels; (b) a vessel. \[Dams etc. excluded\] (5) In the case of an electricity generation, transmission or distribution facility, the following are not related facilities (or part of the infrastructure facility itself): (a) a dam or coal mine; (b) facilities for transporting fuel or water to the site at which the electricity generation, transmission or distribution takes place. \[Hangars etc. excluded\] (6) In the case of an air transport facility, the following are not related facilities (or part of the infrastructure facility itself): (a) a hangar or other facility for storage, repair or maintenance of aircraft; (b) an aircraft. \[Processing plant etc. excluded\] (7) In the case of a gas pipeline facility, the following are not related facilities (or part of the infrastructure facility itself): (a) the processing plant from which the gas pipeline transports the gas; (b) any drilling, extraction, processing or other plant or equipment for use in obtaining the gas, processing it or transporting it to the processing plant in paragraph (a). ## Part 3—Certificates ### Division 1—Issue, variation and transfer etc. #### 93N Application for certificate \[Application to DAA\] (1) Subject to subsection (7), a person who proposes to borrow money, where the person considers the borrowing to be an infrastructure borrowing, may apply to the DAA for a certificate under this Chapter in relation to the borrowing. \[Details in application\] (2) The application must contain sufficient details to enable the DAA to decide whether the borrowing is an infrastructure borrowing. \[Dates in application\] (3) The application must also specify dates by which the person intends to do the following: (a) in any case—borrow the money; (b) in the case of a direct infrastructure borrowing: (i) spend the borrowed money in constructing or acquiring any facility concerned; and (ii) complete specified stages in the construction of any facility that is intended to be constructed; (c) in the case of an indirect infrastructure borrowing—lend the borrowed money as mentioned in section 93G; (d) in the case of a refinancing infrastructure borrowing—use the borrowed money to repay the other infrastructure borrowing mentioned in subparagraph 93H(1)(b)(i). \[Indirect infrastructure borrowing—additional requirement\] (4) If the borrowing is an indirect infrastructure borrowing, the application must be accompanied by: (a) a copy of the certificate in relation to the other borrowing mentioned in subparagraph 93G(b)(i); or (b) an application for such a certificate in relation to the other borrowing. \[Refinancing infrastructure borrowing—additional requirement\] (5) If the borrowing is a refinancing infrastructure borrowing, the application must be accompanied by a copy of the certificate in relation to the other borrowing mentioned in subparagraph 93H(1)(b)(i). \[Variation of application\] (6) The applicant may, in writing given to the DAA, vary the application at any time before the DAA advises the applicant in accordance with subsection 93P(1). New applications not to be made (7) After the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, a person is not entitled to apply to the DAA for a certificate under this Chapter. Certain past applications ineffective (8) If a person applied to the DAA for a certificate under this Chapter during the period from the borrowings cut‑off time until the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, the application has no effect, and is taken never to have had any effect. #### 93O Criteria for issuing certificate \[Criteria\] (1) Subject to subsection (2) and sections 93P and 93PA, the DAA must issue the certificate if: (a) in any case—the DAA is satisfied that: (i) the proposed borrowing is an infrastructure borrowing; and (ii) the dates specified in the application in accordance with subsection 93N(3) are reasonable; and (b) in the case of an indirect infrastructure borrowing where a certificate is not in force in relation to the other borrowing mentioned in subparagraph 93G(b)(i)—the DAA decides to issue such a certificate at the same time as it issues the certificate in relation to the indirect infrastructure borrowing. \[Laws restricting competition\] (2) If: (a) the borrowing is a direct infrastructure borrowing; and (b) there is in force, at the time at which the DAA proposes to issue the certificate in relation to the borrowing, a law that the DAA is satisfied will prohibit or restrict the operation of other facilities in competition with the infrastructure facilities concerned; the DAA must not issue the certificate. #### 93P Undertaking to comply with certificate conditions \[DAA to request undertaking\] (1) Subject to subsection (4), if the DAA is satisfied of the matters required for the issue of a certificate under section 93O, the DAA must advise the applicant that it will issue the certificate if the applicant gives the DAA an undertaking to the effect that, if the certificate is issued, the applicant will comply with the conditions applying to the certificate under section 93R. > Note: In summary, the conditions require the applicant to do the things set out in the application (or the application as varied), to maintain its status as an incorporated body, corporate limited partnership or trust, and to keep proper records. \[Form of undertaking\] (2) The undertaking must be in the approved form, and must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, the undertaking must be signed on behalf of the applicant by whichever of the following natural persons is applicable: (a) if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board; (b) in any other case—the natural person designated by the form as the signatory. \[Undertaking required before certificate issued\] (3) The DAA must not issue the certificate until the undertaking is received. New advice not to be given (4) After the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, the DAA must not give advice to the applicant under subsection (1). Certain past advice ineffective (5) If the DAA gave advice to an applicant under subsection (1) during the period from the borrowings cut‑off time until the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, that advice has no effect, and is taken never to have had any effect. #### 93PA Termination of certificate issue provisions (1) After the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, the DAA must not issue a certificate under this Chapter unless it gave written advice to the applicant for the certificate in accordance with subsection 93P(1) of this Act before the borrowings cut‑off time. (2) Any certificate issued by the DAA under this Chapter during the period from the borrowings cut‑off time until the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997 has no effect, and is taken never to have had any effect, unless the DAA gave written advice to the applicant for the certificate in accordance with subsection 93P(1) of this Act before the borrowings cut‑off time. #### 93Q Form of certificate etc. \[Form etc.\] (1) If an application for a certificate is granted, the certificate must: (a) be in writing in the approved form; and (b) be in the name of the applicant; and (c) contain details of the borrowing of money to which it relates and a statement whether the borrowing is a direct infrastructure borrowing, an indirect infrastructure borrowing or a refinancing infrastructure borrowing. \[Cancellation etc.\] (2) The certificate: (a) may not be varied or revoked, but may be cancelled in accordance with this Part; and (b) remains in force at all times after its issue until it is cancelled in accordance with this Part. #### 93R Conditions applying to certificate The following conditions apply to the certificate: (a) if the certificate applies to a direct infrastructure borrowing or to a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing—that the holder will be: (i) an incorporated body throughout the certificate holder requirement period; or (ii) a corporate limited partnership, or a trust of a kind mentioned in subparagraph 93I(2)(a)(ii), in relation to each year of income in which any part of the certificate holder requirement period occurs; (b) if the holder is: (i) the person to whom the certificate was issued; or (ii) a person to whom the certificate was transferred, where subsection 93K(2) applies; or (iii) a person to whom the certificate was transferred, where subsection 93K(3) or (4) applies and the transfer mentioned in that subsection has not yet occurred; that the holder will: (iv) in any case—do, if applicable by the date specified in the application, all the things that were specified in the application as things the applicant intended to do in relation to: (A) the borrowing; and (B) the spending, lending or investing of the borrowed money; and (C) the construction or acquisition of any facility; and (D) the ownership, use and control of any facility; and (E) any transfer of the holder’s rights, interests and obligations in respect of any facility; and (F) any other matter; and (v) if the certificate applies to a direct infrastructure borrowing—not do anything that: (A) will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned; or (B) would have caused section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned if the amendments made by Part 2 of Schedule 1 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007 had not been made; and (vi) in any case—keep proper records in respect of all dealings by the holder with the borrowed money and the doing of all other things specified in the application (for example, in respect of things done in constructing any facility); (c) if the holder is a person to whom the certificate was transferred, where subsection 93K(3) or (4) applies and the transfer mentioned in that subsection has occurred—that the holder will: (i) own, use principally for gaining or producing assessable income and effectively control the use of, the facilities concerned (other than by leasing them) until at least 25 years after the first use of any of the facilities concerned after their construction or acquisition under the borrowing; and (ii) not do anything that: (A) will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned; or (B) would have caused section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned if the amendments made by Part 2 of Schedule 1 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007 had not been made; and (iii) keep proper records in respect of the ownership, use and control of the facilities concerned. #### 93S Application for variation of conditions applying to a certificate The holder of a certificate may apply to the DAA for variation of the conditions applying to the certificate under paragraph 93R(b) or (c). #### 93T Criteria for variation of conditions applying to a certificate Subject to section 93TA, if the DAA is satisfied that: (a) assuming that the things specified in the application for the issue of the certificate had originally been as proposed to be varied, the DAA would still have issued the certificate; and (b) it is reasonable to do so; the DAA must, in writing, vary the conditions. #### 93TA Conditions not to be varied if total tax payable reduced Request to Commissioner of Taxation (1) If, after the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, the DAA becomes satisfied as mentioned in section 93T of this Act in relation to an application to vary the conditions applying to a certificate, the DAA must request the Commissioner of Taxation in writing to make a determination in accordance with subsection (2). Nature of determination (2) After receiving the request, the Commissioner must determine whether or not, if the conditions are varied in accordance with the application, there is likely to be, as a result of the variation, a reduction in the sum of the present values (worked out when the Commissioner makes the determination) of all amounts of tax that have or may become payable, under Acts of which the Commissioner of Taxation has the general administration, by the persons whose liability to tax may be affected by the variation. Information to Commissioner (3) The DAA must give the Commissioner any information that the Commissioner requires for the purposes of making the determination. Written advice of determination (4) The Commissioner must advise the DAA and the applicant in writing of the Commissioner’s determination. Conditions not to be varied unless reduction unlikely (5) The DAA must not vary the conditions if the Commissioner’s determination is that there is likely to be a reduction of the kind mentioned in subsection (2). Objections (6) If the applicant is dissatisfied with the determination by the Commissioner, the applicant may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953. #### 93TB Reconsideration of pre‑commencement variations Request to Commissioner (1) If, during the period from the borrowings cut‑off time until the commencement of the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, the DAA approved any variation of conditions applying to a certificate, the DAA must, as soon as practicable after the commencement of that Act, request the Commissioner of Taxation in writing to advise in accordance with subsection (2). Commissioner to advise of determination (2) After receiving the request, the Commissioner must advise the DAA and the person who applied for the variation, in writing, of the determination that the Commissioner would have made under subsection 93TA(2) (assuming that section 93TA had been in force at the time) if the DAA had requested the Commissioner to make a determination in relation to the variation of the conditions immediately before they were varied. Application of subsections 93TA(3) and (6) etc. (3) Subsections 93TA(3) and (6), and Part IVC of the Taxation Administration Act 1953, apply in the same way to the Commissioner’s advice as they do to a determination under subsection 93TA(2). Effect of advice (4) If the Commissioner advises that he or she would have determined that there was likely to be a reduction of the kind mentioned in subsection 93TA(2), the variation of the conditions has no effect, and is taken never to have had any effect. #### 93U Transfer of certificate If the holder of a certificate proposes to transfer the certificate to another person, the holder and the other person may jointly apply to the DAA for the transfer of the certificate on a specified date. #### 93V Criteria for transfer of certificate Subject to section 93W, the DAA must, in writing, transfer the certificate to the transferee on the specified date if the DAA is satisfied that: (a) by the specified date, all rights, interests and obligations of the certificate holder in relation to: (i) if subparagraph (ii) does not apply: (A) the spending, lending or other use of the borrowed money; and (B) the acquisition, construction, ownership, use and control of any facility covered by the conditions applying to the certificate; or (ii) if the transfer of the certificate to the transferee will enable effect to be given to a requirement, in a condition applying to the certificate as a result of subsection 93K(3) or (4), for the holder to transfer to another person all of the holder’s rights, interests and obligations in relation to facilities—those facilities; will be transferred to the transferee; and (b) the rights, interests and obligations will not be transferred to the transferee in partnership with anyone else; and (c) the requirements of section 93I would be satisfied in relation to the transferee if the transferee had been the person who proposed to borrow the money and the borrower requirement period in section 93I were the certificate holder requirement period; and (d) if the transfer is approved, the transferee intends to comply with the conditions that will apply to the certificate. #### 93W Undertaking to comply with certificate conditions \[DAA to request undertaking\] (1) If the DAA is satisfied of the matters required for the transfer of a certificate under section 93V, the DAA must advise the applicants that it will transfer the certificate if the transferee gives the DAA an undertaking to the effect that, if the certificate is transferred, the transferee will comply with the conditions that will apply to the certificate under section 93R. \[Form of undertaking\] (2) The undertaking must be in the approved form, and must be signed by the transferee if the transferee is a natural person. If the transferee is not a natural person, the undertaking must be signed on behalf of the transferee by whichever of the following natural persons is applicable: (a) if the transferee is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board; (b) in any other case—the natural person designated by the form as the signatory. \[Undertaking required before transfer\] (3) The DAA must not transfer the certificate to the transferee until the undertaking is received. #### 93X Provisions relating to applications under this Division \[Approved form\] (1) An application must be in writing in the approved form. \[Information in form\] (2) The application must contain such information as is required by the form to be given. \[Accompanying reports etc.\] (3) The application must be accompanied by any report or other document required by the form to be given. \[Signing of application etc.\] (4) The application, and any accompanying report or other document created by an applicant, must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable: (a) if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board; (b) in any other case—the natural person designated by the form as the signatory. \[Power to refuse to consider application\] (5) If the DAA gives a request to an applicant under Part 4 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request. \[Decision on application\] (7) After considering an application, the DAA must decide: (a) to grant the application; or (b) to refuse the application. \[Notice of decision\] (8) The DAA must give written notice of the decision to each applicant. \[Reasons for refusal\] (9) A notice of a refusal of an application must set out the reasons for the refusal. ### Division 2—Cancellation #### 93Z Cancellation or termination—failure to comply with request to give information or provide report If a certificate holder fails to comply with a request made by the DAA under section 93ZC or with the requirements of section 93ZE, the DAA may, by written notice given to the holder, cancel the certificate. #### 93ZA Cancellation—false or misleading statements etc. \[False or misleading statements—Part 4 request not involved\] (1) If a certificate holder, in connection with the operation of this Chapter (other than Part 4): (a) makes a statement, either orally or in writing, to the DAA or to an officer of the Department that is false or misleading in a material particular; or (b) omits from a statement made, either orally or in writing, to the DAA or to an officer of the Department any matter or thing without which the statement is misleading in a material particular; or (c) gives or produces a document or copy to the DAA or to an officer of the Department that contains information that is false or misleading in a material particular; the DAA may, by written notice given to the holder, cancel the certificate. \[False or misleading information given under Part 4\] (2) If a certificate holder, in compliance with a notice under Part 4, gives information that is false or misleading in a material particular, the DAA may, by written notice given to the holder, cancel the certificate. \[False or misleading documents given under Part 4\] (3) If a certificate holder, in compliance with a notice under Part 4, produces a document, or gives a copy of a document, that, to the knowledge of the holder, is false or misleading in a material particular, the DAA may, by written notice given to the holder, cancel the certificate. \[Subsection (3) does not apply if document accompanied by explanation\] (4) Subsection (3) does not apply to a certificate holder who produces a document, or gives a copy of a document, that, to the knowledge of the holder, is false or misleading in a material particular if the document or copy is accompanied by a written statement: (a) stating that the document or copy is, to the knowledge of the holder, false or misleading in a material particular; and (b) setting out, or referring to, the material particular in which the document or copy is, to the knowledge of the holder, false or misleading. \[Imputed knowledge of bodies corporate and partnerships etc.\] (5) For the purposes of subsections (3) and (4): (a) an incorporated body is taken to know anything known by any of its directors or employees; and (b) a corporate limited partnership is taken to know anything known by: (i) if any of the partners is a natural person—that partner; and (ii) if any of the partners is an incorporated body—any of the directors or employees of that partner; and (c) a natural person is taken to know anything known by an employee of the natural person. #### 93ZAA Cancellation of certificate that applies to an indirect infrastructure borrowing etc.—holder ceases to be a resident (1) If: (a) a certificate held by an incorporated company (not in the capacity of trustee) applies to: (i) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by subparagraph (i); and (b) at the time when the company became the holder of the certificate, the holder was a non‑exempt resident company; and (c) the holder has ceased to be a non‑exempt resident company before the end of the applicable borrower requirement period; the DAA is taken to have cancelled the certificate with effect from the time of the cessation. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. (2) If: (a) a certificate held by a partnership (not in the capacity of trustee) applies to: (i) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by subparagraph (i); and (b) the holder was a non‑exempt resident corporate limited partnership in relation to the year of income in which the partnership became the holder of the certificate; and (c) the holder has ceased to be a non‑exempt resident corporate limited partnership in relation to a year of income in which any part of the applicable borrower requirement period occurs; the DAA is taken to have cancelled the certificate with effect from the time of the cessation. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. (3) If a certificate is cancelled under subsection (1) or (2), the cessation is taken to be the ground relied on by the DAA for cancelling the certificate. #### 93ZAB Cancellation of certificate that applies to an indirect infrastructure borrowing—transfer of rights etc. (1) If: (a) a certificate applies to an indirect infrastructure borrowing; and (b) the holder transfers to another person (the transferee) any or all of the holder’s rights, interests and obligations in relation to the lending of the borrowed money as mentioned in subparagraph 93G(b)(i); and (c) 30 days pass and: (i) in a case where all of the holder’s rights, interests and obligations are transferred—the holder has neither repaid the whole of the borrowing nor passed the certificate transfer test set out in subsection (3); or (ii) in a case where some, but not all, of the holder’s rights, interests and obligations are transferred—the holder has not repaid the whole of the borrowing; the DAA is taken to have cancelled the certificate with effect from the time of the transfer. (2) If the certificate is cancelled under subsection (1), the transfer is taken to be the ground relied on by the DAA for cancelling the certificate. (3) For the purposes of this section, the holder passes the certificate transfer test at a particular time if, before that time: (a) an application has been made under section 93U to transfer the certificate to the transferee; and (b) either: (i) the DAA has transferred the certificate to the transferee under this Division; or (ii) the DAA was required to transfer the certificate to the transferee under this Division. #### 93ZAC Cancellation of certificate that applies to an indirect infrastructure borrowing—total repayment of related direct infrastructure borrowing (1) If: (a) a certificate applies to an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; and (b) the whole of the direct infrastructure borrowing is repaid; and (c) 30 days pass and: (i) in a case where the repayment is made using a refinancing infrastructure borrowing—the holder has neither repaid the whole of the indirect infrastructure borrowing nor passed the certificate transfer test set out in subsection (3); or (ii) in any other case—the holder has not repaid the whole of the indirect infrastructure borrowing; the DAA is taken to have cancelled the certificate with effect from the time of the repayment of the direct infrastructure borrowing. (2) If the certificate is cancelled under subsection (1), the repayment of the direct infrastructure borrowing is taken to be the ground relied on by the DAA for cancelling the certificate. (3) For the purposes of this section, the holder passes the certificate transfer test at a particular time if, before that time: (a) an application has been made under section 93U to transfer the certificate to the borrower in relation to the refinancing infrastructure borrowing (the transferee); and (b) either: (i) the DAA has transferred the certificate to the transferee under this Division; or (ii) the DAA was required to transfer the certificate to the transferee under this Division. #### 93ZAD Cancellation of certificate that applies to an indirect infrastructure borrowing—partial repayment of related direct infrastructure borrowing (1) If: (a) a certificate applies to an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; and (b) a percentage (being a percentage less than 100%) of the direct infrastructure borrowing is repaid; and (c) 30 days pass and the holder has not repaid that percentage of the indirect infrastructure borrowing; the DAA is taken to have cancelled the certificate with effect from the time of the repayment of that percentage of the direct infrastructure borrowing. (2) If the certificate is cancelled under subsection (1), the repayment of that percentage of the direct infrastructure borrowing is taken to be the ground relied on by the DAA for cancelling the certificate. #### 93ZB Cancellation for contravention of conditions applying to certificate etc. \[Cancellation of certificate\] (1) The DAA may, by written notice to the holder, cancel a certificate if the DAA is satisfied that the holder has not complied with the conditions applying to the certificate. \[Cancellation of certificates connected with a cancelled direct infrastructure borrowing certificate\] (2) If the DAA cancels the certificate that applies to a direct infrastructure borrowing, it must also cancel any certificate applying to: (a) an indirect infrastructure borrowing, where the direct infrastructure borrowing is the one mentioned in subparagraph 93G(b)(i); and (b) a refinancing infrastructure borrowing that relates to the direct infrastructure borrowing. \[Cancellation of certificates connected with a cancelled indirect infrastructure borrowing certificate\] (3) If the DAA cancels (whether under subsection (2) or otherwise) the certificate that applies to an indirect infrastructure borrowing, it is taken to have also cancelled any certificate that applies to a refinancing infrastructure borrowing that relates to the indirect infrastructure borrowing. The grounds relied on by the DAA for cancelling the certificate that applies to the refinancing infrastructure borrowing are taken to be the same as the grounds relied on by the DAA for cancelling the certificate that applies to the indirect infrastructure borrowing. ## Part 4—Provision of information to DAA #### 93ZC DAA may request person to give information or produce documents etc. \[Making of request\] (1) For the purposes of this Chapter, the DAA may, by written notice given to a person who has made an application or who is a certificate holder, request the person: (a) to give information to the DAA within the time and in the manner specified in the notice; or (b) to produce documents to the DAA within the time and in the manner specified in the notice; or (c) to give certified copies of documents to the DAA within the time and in the manner specified in the notice. \[Contravention not an offence\] (2) It is not an offence to contravene the notice. #### 93ZD How DAA may deal with documents etc. produced by person \[Inspection, copies etc.\] (1) The DAA or an officer of the Department authorised in writing by the DAA may inspect, take extracts from, and make copies of, any document or copy produced or given to the DAA under section 93ZC. \[Retention of certified copy\] (2) The DAA may retain a certified copy of a document given in accordance with a request covered by paragraph 93ZC(1)(c). \[Retention of document\] (3) The DAA may, for the purposes of this Chapter, take, and retain for as long as is necessary for those purposes, a document produced under paragraph 93ZC(1)(b). \[Copy of retained document\] (4) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the DAA to be a true copy. \[Evidence\] (5) The certified copy must be received in all courts and tribunals as evidence as if it were the original. \[Access to document\] (6) Until a certified copy is supplied, the DAA must, at such times and places as the DAA thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document. #### 93ZE Certificate holder to provide annual progress reports The holder of a certificate that was issued or transferred to the holder must: (a) within one month after the end of the first 12 month period (the reporting year) after the issue of the certificate; and (b) within one month after the end of each 12 month period (also a reporting year) after the first reporting year and while the certificate remains in force; report in writing to the DAA on things done, during the reporting year concerned, in complying with conditions applying to the certificate under paragraph 93R(b) or (c). ## Part 5—Provision of information by DAA to Commissioner of Taxation #### 93ZF Provision of information to Commissioner of Taxation The DAA must advise the Commissioner of Taxation in writing of particulars of: (a) all certificates issued; and (b) all certificates transferred; and (c) all certificates cancelled; and (d) all other matters relevant to the operation of Division 16L of Part III of the Tax Act. ## Part 6—DAA’s power to facilitate issue or transfer of certificate #### 93ZG DAA’s powers to facilitate issue or transfer of certificate If the DAA considers that any action or inaction of a person or body is likely to have the effect of preventing the DAA from issuing or transferring a certificate under this Chapter, the DAA may, with the consent of each applicant, notify the person or body accordingly. Chapter 4—General ## Part 1—Interpretation #### 93AA Interpretation In this Chapter, unless the contrary intention appears: > AAT means the Administrative Appeals Tribunal. > DAA means the Development Allowance Authority appointed under this Chapter. > document certification provision means section 15A of the Taxation Administration Act 1953 in so far as that section applies in relation to this Act. > partnership has the same meaning as in section 6 of the Income Tax Assessment Act 1936. > prosecution provisions means Part III of the Taxation Administration Act 1953, in so far as that Part applies in relation to this Act. > reviewable decision means a decision of the DAA under Part 2, 3, 4, 5, 6 or 8 of Chapter 2, Part 3 of Chapter 3 or Part 4 of Chapter 4. ## Part 2—Development Allowance Authority #### 94 Creation of single‑person statutory office of Development Allowance Authority There is to be a Development Allowance Authority (DAA). #### 95 Appointment of DAA The DAA is to be appointed by the Governor‑General. #### 96 DAA may be full‑time or part‑time The DAA may be appointed on a full‑time basis or a part‑time basis. #### 97 DAA’s term of office The DAA holds office for the period specified in the instrument of appointment. #### 99 Person may hold both the office of DAA and the office of Commissioner of the Industry Commission Neither this Act nor the Industry Commission Act 1989 prevents a person from holding both: (a) an office of Commissioner of the Industry Commission; and (b) the office of DAA (whether on a full‑time basis or a part‑time basis). #### 101 DAA’s terms and conditions of appointment The DAA holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General. #### 102 DAA’s remuneration and allowances (1) The DAA is to be paid such remuneration as is determined by the Remuneration Tribunal. (2) If no determination is in force, the DAA is to be paid such remuneration as is specified in the regulations. (3) The DAA is to be paid such allowances as are specified in the regulations. (4) This section has effect subject to the Remuneration Tribunal Act 1973. #### 103 Full‑time DAA’s leave of absence (1) A full‑time DAA has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Minister may grant a full‑time DAA leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. #### 104 Resignation of DAA The DAA may resign the office of DAA by signed instrument delivered to the Governor‑General. #### 105 Termination of appointment of DAA \[Misbehaviour or physical or mental incapacity\] (1) The Governor‑General may terminate the appointment of the DAA for misbehaviour or physical or mental incapacity. \[Bankruptcy, conflict of interest, absence from duty etc.\] (2) The Governor‑General must terminate the appointment of the DAA if the DAA: (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; or (b) fails, without reasonable excuse, to comply with section 107 (which deals with conflict of interest); or (c) is appointed on a full‑time basis and is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (d) is appointed on a full‑time basis and engages in paid employment outside the duties of the office of DAA without the consent of the Minister; or (e) is appointed on a part‑time basis and engages in paid employment that, in the opinion of the Minster, conflicts with the proper performance of his or her duties. \[Insufficient workload to justify full‑time appointment\] (3) The Governor‑General must terminate the appointment of a full‑time DAA if the Minister issues a written determination stating that the Minister is of the opinion that the workload of the DAA is insufficient to justify a full‑time appointment. #### 106 Acting DAA The Minister may appoint a person to act as the DAA: (a) during a vacancy in the office of DAA, whether or not an appointment has previously been made to that office; or (b) during any period, or during all periods, when the DAA is absent from duty or from Australia or is, for any other reason, unable to perform the duties of that office. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 107 Conflict of interest \[DAA to notify business interests to Minister\] (1) The DAA must give written notice to the Minister of all direct or indirect pecuniary interests that the DAA has or acquires in any business, or in any body corporate carrying on a business. \[DAA to notify potential conflict of interest to Minister\] (2) If the DAA has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the DAA, the DAA must: (a) give written notice to the Minister of that interest; and (b) take no further action on the matter before: (i) the end of 28 days after the date on which the Minister receives the notice; or (ii) the date on which written advice of a decision of the Minister under subsection (4) is given in relation to the matter; whichever first occurs. \[Minister may direct DAA to delegate\] (3) If: (a) the DAA has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the DAA; and (b) the Minister considers that the interest could conflict with the proper performance of the DAA’s functions in relation to that matter; then: (c) the Minister must give the DAA a written notice directing the DAA: (i) not to deal with the matter personally; and (ii) to delegate the DAA’s functions and powers in relation to that matter to an SES employee or acting SES employee occupying a specified position in the Department; and (iii) not to delegate the DAA’s functions and powers in relation to that matter to any other person; and (d) the DAA must comply with the direction. \[Minister may allow DAA to deal with matter personally\] (4) If: (a) the DAA has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the DAA; and (b) the Minister does not consider that the interest could conflict with the proper performance of the DAA’s functions in relation to that matter; the Minister may give the DAA a written notice stating that the Minister has no objection to the DAA dealing with the matter personally. \[Minister’s direction to be given within 28 days of notification of DAA’s interest\] (5) If: (a) the DAA has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the DAA; and (b) the Minister considers that the interest could conflict with the proper performance of the DAA’s functions in relation to that matter; and (c) the DAA gives written notice to the Minister of that interest under subsection (2); a direction under subsection (3) in relation to that matter has no effect unless it is given before the end of 28 days after the date on which the Minister receives the notice. ## Part 3—Administration #### 108 Delegation by DAA The DAA may, by writing, delegate to an SES employee or acting SES employee in the Department all or any of the DAA’s functions or powers under: (a) this Act; or (b) the document certification provision; or (d) the prosecution provisions. #### 109 Consultants The DAA may engage as consultants, on such terms and conditions as are determined by the DAA, persons having suitable qualifications and experience. #### 110 Commonwealth authorities may assist DAA (1) This section applies to an authority established by or under a law of the Commonwealth. (2) In addition to the functions otherwise conferred on the authority, the authority may, at the request of the DAA, provide assistance to the DAA relating to the administration of this Act. (3) The authority may charge fees for the provision of the assistance. ## Part 4—Protection of commercial‑in‑confidence information #### 111 Application for protection of commercial‑in‑confidence information (1) An application under Part 3, 4, 5 or 6 of Chapter 2 or Part 3 of Chapter 3 may be accompanied by an application that certain information given in accordance with that Part (other than section 34) be treated as commercial‑in‑confidence information under this Part. (2) The giving of information, or the production or giving of a document or copy, under section 34, Part 7 of Chapter 2 or Part 4 of Chapter 3 may be accompanied by an application that some or all of the information or of the contents of the document or copy be treated as commercial‑in‑confidence information under this Part. (3) An application under subsection (1) or (2) must be in writing in the approved form. #### 112 DAA may declare that information is to be treated as commercial‑in‑confidence information \[Declaration\] (1) If, on an application under subsection 111(1) or (2), the DAA is satisfied that: (a) publication of the information specified in the application could reasonably be expected to prejudice substantially the commercial interests of the applicant; and (b) the prejudice outweighs the public interest in the publication of the information; the DAA may declare that the information is to be treated as commercial‑in‑confidence information for the purposes of this Part. \[Notification of decision on application\] (2) The DAA must give the applicant written notice of the decision about the application. \[Confidential status maintained until reconsideration or review finalised\] (3) For the purposes of this Part, if the DAA refuses an application under subsection 111(1) or (2) in relation to information, the information is treated as commercial‑in‑confidence information at a particular time if: (a) the time is after the application is made but before the end of the period of 21 days after the giving of the notice of refusal; or (b) if, during that period, the applicant requests the DAA to reconsider the decision refusing the application—the time is during the period when that reconsideration, or any subsequent application to the AAT, has not been finalised. \[Reconsideration taken not to be finalised during period when AAT application can be made\] (4) For the purposes of this section, a reconsideration of a decision is taken not to have been finalised during the period of 28 days after: (a) if, because of the operation of subsection 119(4), the decision is taken to be confirmed—the day on which the decision is taken to have been confirmed; or (b) in any other case—the day on which the decision on the reconsideration is notified to the entity concerned. \[Reasons for decision\] (5) If the DAA refuses to make a declaration, the notice of refusal must set out the reasons for the refusal. #### 113 DAA may revoke declaration \[Revocation of declaration\] (1) If: (a) there is in force a declaration under section 112 that information given by a person is to be treated as commercial‑in‑confidence information for the purposes of this Part; and (b) the DAA is satisfied that: (i) publication of the information could not reasonably be expected to prejudice substantially the commercial interests of the person; or (ii) both: (A) publication of the information could reasonably be expected to prejudice substantially the commercial interests of the person; and (B) the public interest in the publication of the information outweighs the prejudice; the DAA may, by written notice given to the entity, revoke the declaration with effect from the 21st day after the day on which the revocation is notified to the person. \[When power of revocation may be exercised\] (2) The DAA’s powers under subsection (1) may be exercised: (a) on the DAA’s own initiative; or (b) upon application being made by the person concerned. \[Confidential status maintained until reconsideration or review finalised\] (3) For the purposes of this Part, if: (a) the DAA revokes a declaration under section 112 relating to information; and (b) before the revocation takes effect, the person concerned requests the DAA to reconsider the decision to revoke the declaration; the information is treated as commercial‑in‑confidence information at a particular time after the revocation takes effect if that time is during the period when that reconsideration, or any subsequent application to the AAT, has not been finalised. \[Reconsideration taken not to be finalised during period when AAT application can be made\] (4) For the purposes of this section, a reconsideration of a decision is taken not to have been finalised during the period of 28 days after: (a) if, because of the operation of subsection 119(4), the decision is taken to be confirmed—the day on which the decision is taken to have been confirmed; or (b) in any other case—the day on which the decision on the reconsideration is notified to the person concerned. \[Reasons for decision\] (5) If the DAA revokes a declaration, the notice of the revocation must set out the reasons for the revocation. #### 114 Commercial‑in‑confidence information must not be disclosed (1) A person who: (a) has commercial‑in‑confidence information; and (b) has it only because of performing duties or functions under this Act; and (c) knows that the information is commercial‑in‑confidence information; must not disclose any of the information. Penalty: Imprisonment for 2 years. (1A) Subsection (1) does not apply if the disclosure is: (a) in the course of carrying out functions and duties under this Act; or (b) to the Commissioner of Taxation, for the purposes of the administration of an Act of which the Commissioner of Taxation has the general administration; or (c) by order of a court; or (d) with the consent of the person who applied to have the information treated as commercial‑in‑confidence information. > Note: A defendant bears an evidential burden in relation to the matters in subsection (1A), see subsection 13.3(3) of the Criminal Code. (2) For the purposes of this section, information is commercial‑in‑confidence information at a particular time if, and only if, at that time: (a) there is in force a declaration under section 112 that the information is to be treated as commercial‑in‑confidence information for the purposes of this Part; or (b) the information is otherwise treated as commercial‑in‑confidence information for the purposes of this Part. #### 114A Disclosure of commercial‑in‑confidence information obtained in breach of this Act (1) A person commits an offence if the person: (a) makes a record of, discloses or otherwise makes use of information; and (b) the information is commercial‑in‑confidence information for the purposes of section 114; and (c) the information was disclosed to or obtained by the person in breach of section 114; and (d) the information was not disclosed to or obtained by the person because of performing duties or functions under this Act. Penalty: Imprisonment for 2 years. (2) Subsection (1) does not apply: (a) to the extent that the person’s actions are required or permitted by this Act or reasonably necessary in order to comply with an obligation imposed by this Act; or (b) to a disclosure if the disclosure is: (i) to the DAA or a person who is performing duties or functions under this Act; and (ii) for a purpose connected with administering this Act. > Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code. (3) Except where it is necessary to do so for the purpose of carrying into effect the provisions of this Act, a person must not be required to disclose to a court or tribunal a matter or thing with respect to information in relation to which subsection (1) applies. ## Part 5—Reports by DAA #### 115 Quarterly reports by DAA (1) The DAA must, as soon as practicable after the end of each quarter, prepare and give to the Minister a report on the operation of this Act during that quarter, including information about: (a) the number and type of registrations (if any) granted under Chapter 2 during that quarter; and (b) the number and type of certificates (if any) granted under this Act during that quarter. (2) This section applies to a quarter if: (b) there is not in force a direction under section 116 relating to a period which wholly or partly overlaps the quarter. (3) In this section: > quarter means so much of a quarter commencing on 1 July, > 1 September, 1 January or 1 April as occurs after the commencement of this section. #### 116 Periodic reports by DAA (1) The Minister may, by written notice given to the DAA, direct the DAA to prepare and give to the Minister a report on the operation of this Act during a specified period. (2) The DAA must comply with the direction. #### 117 Annual report (1) The DAA must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the operation of this Act during that year. (2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister. (4) If this section does not commence at the beginning of a financial year, this section has effect in relation to the period beginning at the commencement of this section and ending on the next 30 June as if: (a) if the period is less than 6 months—the period were included in the next financial year; or (b) in any other case—the period were a financial year. #### 118 Reports to deal with ancillary provisions of the Taxation Administration Act 1953 A reference in this Part to the operation of this Act includes a reference to the operation of: (a) the document certification provision; and (c) the prosecution provisions. ## Part 6—Review of decisions #### 119 Reconsideration of reviewable decisions (1) A person who is affected by a reviewable decision may, if dissatisfied with the decision, by notice given to the DAA within: (a) the period of 21 days after the day on which the decision first comes to the attention of the person; or (b) such further period as the DAA allows; request the DAA to reconsider the decision. (2) The reasons for making the request must be set out in the request. (3) Upon receipt of the request, the DAA must reconsider the decision and may, subject to subsection (4), confirm or revoke the decision or vary the decision in such manner as the DAA thinks fit. (4) If the DAA does not confirm, revoke or vary a decision before the end of the period of 40 days after the day on which the DAA received the request under subsection (1) to reconsider the decision, the DAA is taken, at the end of that period, to have confirmed the decision under subsection (3). (5) If the DAA confirms, revokes or varies a decision before the end of the period referred to in subsection (4), the DAA must, by notice given to the applicant, inform the applicant of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be. #### 120 Review of decisions by Administrative Appeals Tribunal (1) Applications may be made to the AAT for review of decisions of the DAA that have been confirmed or varied under subsection 119(3). (2) If, because of the operation of subsection 119(4), a decision is taken to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period: (a) commencing on the day on which the decision is taken to have been confirmed; and (b) ending on the 28th day after that day. (3) If a request is made under subsection 119(1) in respect of a reviewable decision, section 41 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the AAT for a review of that decision. #### 121 Statements to accompany notification of decisions (1) If written notice is given to a person affected by a reviewable decision that the reviewable decision has been made, that notice must include a statement to the effect that: (a) the person may, if dissatisfied with the decision, seek a reconsideration of the decision by the DAA in accordance with subsection 119(1); and (b) the person may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision made by the DAA upon that reconsideration confirming or varying the first‑mentioned decision, make application to the AAT for review of the decision so confirmed or varied. (2) If: (a) the DAA confirms or varies a reviewable decision under subsection 119(3); and (b) gives to the person written notice of the confirmation or variation of the decision; that notice must include a statement to the effect that the person may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision so confirmed or varied, make application to the AAT for review of the decision. (3) A failure to comply with this section does not affect the validity of a decision. ## Part 7—Miscellaneous #### 122 Giving of documents to partnerships For the purposes of this Act, if a document is given to a partner of a partnership in accordance with section 28A of the Acts Interpretation Act 1901, the document is taken to have been given to the partnership. #### 122A Certified copies of documents (1) The DAA may certify that a document is a copy of a document (original document) issued by the DAA under this Act. (2) Subject to subsection (3), a document purporting to be a copy certified under subsection (1) must be received in all courts and tribunals in proceedings arising out of a law of the Commonwealth as evidence as if it were the original document. (3) Subsection (2) does not apply in relation to a document if: (a) in the case of proceedings for an offence—evidence is adduced that the document is not a true copy; or (b) in any other case—it is proved that the document is not a true copy. #### 123 Regulations 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.