Division 3Miscellaneous

An Act to make provision for and in relation to Industrial Research and Development, including the payment by the Commonwealth of Incentive Grants ## Part I—Preliminary #### 1 Short title \[see Note 1\] This Act may be cited as the Industrial Research and Development Incentives Act 1976. #### 2 Commencement This Act shall come into operation on 1 July 1976. #### 3 Object of Act The object of this Act is to promote the development and improve the efficiency of Australian industry by encouraging industrial research and development in Australia in matters relating to science and technology. #### 4 Interpretation (1) In this Act, unless the contrary intention appears: > approved professional institute means a body that, at the relevant time, is a recognized professional institute for the purposes of this Act by virtue of a declaration under paragraph 6(1)(b). > approved research organization means a research organization that, at the relevant time, is an approved research organization for the purposes of this Act by virtue of a declaration under paragraph 6(1)(a). > Australia: (a) in relation to mining operations—includes such areas of the seabed adjacent to Australia as are prescribed; (b) in relation to the manufacture of goods—includes such areas of the sea adjacent to Australia as are prescribed; and (c) in relation to construction operations—includes such areas of the sea or seabed adjacent to Australia as are prescribed. > Board means the Australian Industrial Research and Development Incentives Board established by the Industrial Research and Development Incentives Act 1976. > Chairman means the Chairman of the Board. > Chairperson means the Chairperson of the new Board. > commencement grant means a grant of financial assistance under Division 1 of Part III. > company means a body or association of persons, whether corporate or unincorporate. > concentration, in relation to a metal, means the separation of the metal from its ore by any process. > construction operations means operations relating to, and carried out at the site of, the construction of a building. > corporate membership, in relation to an approved professional institute, means membership of the institute that entitles the member concerned to full voting and other rights under the rules or other document governing the activities of the institute. > eligible company means: (a) a company (being a body corporate) that carries on, or proposes to carry on, the manufacture of goods, mining operations, construction operations or software production in Australia; or (b) a recognized company that carries on, or proposes to carry on, the manufacture of goods, mining operations, construction operations or software production in Australia. > eligible contract expenditure, in relation to a company in respect of a grant year, means so much of any amount paid or payable by the company to a research organization for the carrying out by the organization for the company of industrial research and development at a time in that year when the organization is an approved research organization as, in the opinion of the Board, is a reasonable charge for that industrial research and development. > eligible expenditure, in relation to a company in respect of a grant year, means an amount equal to the sum of the following expenditure of the company in respect of the year, less any part of that expenditure that is expenditure on software research and development other than eligible software research and development: (a) eligible contract expenditure; (b) eligible expenditure on technical information; (c) eligible plant expenditure; (d) eligible prototype expenditure; and (e) eligible salary expenditure. > eligible expenditure on technical information, in relation to a company in respect of a grant year, means any amount paid or payable by the company for obtaining technical information in that year, being technical information that the Board is satisfied was or is required by the company for the purposes of industrial research and development carried out, or to be carried out, by the company. > eligible plant expenditure, in relation to a company in respect of a grant year (in this definition referred to as the relevant grant year), means an amount equal to the sum of: (a) one‑third of expenditure incurred by the company: (i) in the case of the grant year commencing on 1 July 1976—in that year; (ii) in the case of the grant year commencing on 1 July 1977—in that year and the grant year commencing on 1 July 1976; and (iii) in the case of the grant year commencing on 1 July 1978 or any subsequent grant year—in that year and the 2 grant years immediately preceding that year; being expenditure of the company in purchasing or constructing, and installing, research and development plant, less any consideration which has been or will be received by the company in respect of the disposal, loss or destruction of that plant except to the extent that that consideration has been taken into account for the purposes of this definition in the application of this Act to the company in respect of a grant year earlier than the relevant grant year; and (b) so much of any amount paid or payable by the company for the hire in the relevant grant year of research and development plant as, in the opinion of the Board, is a reasonable charge to the company for that hire. > eligible prototype expenditure, in relation to a company in respect of a grant year, means expenditure incurred by the company in that year (other than expenditure that is eligible salary expenditure, eligible plant expenditure, eligible expenditure on technical information or eligible contract expenditure of the company in respect of that year) in making, or having made, in the course of the carrying out by the company of industrial research and development, a prototype, less any consideration which has been or will be received by the company in respect of the disposal, loss or destruction of the prototype except to the extent that that consideration has been taken into account for the purposes of this definition in the application of this Act to the company in respect of a previous grant year. > eligible salary expenditure, in relation to a company in respect of a grant year, means expenditure incurred by the company in that grant year, in respect of so much of the salary or wages of full‑time employees as was paid in respect of the whole or any part of a continuous period of not less than 4 weeks, or of periods amounting in the aggregate to not less than 4 weeks, during which the employees were, during their ordinary hours of duty, engaged primarily and principally in professional or technical research and development work and not engaged to any substantial extent in any other duties, less so much of any amount that, in the opinion of the Board, has been or will be received by the company for the performance by the company of industrial research and development for another person in that year as is reasonably attributable to the professional or technical research and development work involved in the performance of that industrial research and development, being professional or technical research and development work engaged in by those employees during that period or those periods. > eligible software research and development, in relation to a company, means software research and development by the company, where the software is for computers or for similar equipment that are, or is: (a) manufactured, or proposed to be manufactured, in Australia by that company or by another company that, by virtue of section 5, is deemed to be related to that company; (b) used, or proposed to be used, in the manufacture in Australia of goods by that company or by another company that, by virtue of section 5, is deemed to be related to that company; (c) used, or proposed to be used, in mining operations in Australia of that company or of another company that, by virtue of section 5, is deemed to be related to that company; or (d) used, or proposed to be used, in construction operations in Australia of that company or of another company that, by virtue of section 5, is deemed to be related to that company. > grant means a commencement grant or a project grant. > grant year means the year that commences on 1 July 1976 or any of the 9 next succeeding years. > industrial research and development, in relation to a company, means systematic experimentation or analysis in a field of science or technology carried on by the company, or procured by it to be carried out, in Australia with the object of: (a) acquiring knowledge that may be of use for the purpose of devising or developing new or substantially improved material products or new or substantially improved processes for or in connexion with the production or use of material products (including processes for disposing of, or rendering harmless, waste products or emissions resulting from the production or use of material products); or (b) applying knowledge for the purpose referred to in paragraph (a). > material products includes software for computers or for similar equipment. > metal includes a compound of a metal. > minerals includes petroleum. > mining operations includes operations for the recovery of naturally occurring petroleum. > new, in relation to material products, means not previously produced by the company concerned or by another company that, by virtue of section 5, is deemed to be related to that company, and, in relation to processes, means not previously used by the company concerned or by another company that is so deemed to be related to that company. > new Board means Innovation Australia, established by the Industry Research and Development Act 1986. > petroleum includes natural gas. > previous Act means the Industrial Research and Development Grants Act 1967. > professional qualification means: (a) the holding, in a branch of science or technology, of a degree, diploma or similar qualification that was granted by a university or by a college or other institution of tertiary or technical education and is approved by the Board for the purposes of this Act; or (b) corporate membership of an approved professional institute or the holding of educational qualifications that are sufficient for admission to corporate membership of such an institute. > professional or technical research and development work, in relation to a company, means: (a) work by way of industrial research and development performed by a full‑time employee of the company who: (i) has a professional qualification; or (ii) if the company is not an approved research organization—is, by virtue of an approval under section 7, an approved employee of the company for the purposes of this definition; or (b) work by way of direct assistance in a technical capacity to the performance of work referred to in paragraph (a). > project grant means a grant of financial assistance under an agreement entered into under Division 2 of Part III. > prototype includes model. > recognized company means a company that, at the relevant time, is a recognized company for the purposes of this Act by virtue of a declaration under paragraph 6(1)(aa). > research and development plant, in relation to a company, means plant or equipment used, or for use, by or on behalf of the company solely for the purpose of industrial research and development carried out, or proposed to be carried out, by or on behalf of the company. > research organization means a person who, or a body or organization which, enters into contracts to perform industrial research and development otherwise than as an employee. > salary or wages does not include salary or wages of an employee in respect of a period when the employee was absent from his employment on long‑service leave. > software production means the production of software for computers or for similar equipment. > software research and development means industrial research and development relating to software production or proposed software production. > technical information means technical or scientific information in books, journals or other publications, or in some other form, and includes technical or scientific information provided by an information service. > year means a period of 12 months commencing on 1 July. (1A) On and after 1 July 1986 any reference in this Act or in an agreement to the Board or the Chairman shall, unless the context otherwise requires, be read as including a reference to the new Board or the Chairperson of the new Board, respectively. (2) A reference in this Act to expenditure incurred by a company in a year shall be read as a reference to an amount that has become payable by the company in the year, whether or not it is paid in that year. (3) Without either extending or restricting, by implication, the scope of the definition of industrial research and development in subsection (1), it is declared that the following do not constitute industrial research and development for the purposes of this Act: (a) methods engineering; (b) operational research; (c) routine quality control; (d) routine materials testing; (e) exploration or prospecting for minerals; (f) design work that: (i) arises from a need to meet the special requirements of a customer; or (ii) is primarily directed to style as distinct from the functional characteristics of a product; and (g) such other operations as are prescribed, whether generally or in relation to a particular class of material products or processes. (4) Regulations made for the purposes of paragraph (3)(g) do not apply in relation to a grant year earlier than the grant year next commencing after the notification of the regulations in the Gazette. (4A) A reference in this Act to a grant, or to an amount of a grant, payable during or in a year shall be read as a reference to a grant, or an amount of a grant, as the case may be, that first becomes due for payment during that year. (5) A reference in this Act to industrial research and development, in relation to an eligible company, shall be read as a reference to such, and only to such, industrial research and development as is: (a) performed by or for the company directly in relation to: (i) the manufacture, or proposed manufacture, in Australia of goods by the company or by another company that, by virtue of section 5, is deemed to be related to the company; (ii) the manufacture, or proposed manufacture, in Australia of goods by another person, being goods that are directly related to the sale or manufacture of goods manufactured, or proposed to be manufactured, in Australia by the company or by another company that, by virtue of section 5, is deemed to be related to the company; (iii) mining operations, or proposed mining operations, in Australia of the company or of another company that, by virtue of section 5, is deemed to be related to the company; (iv) construction operations, or proposed construction operations, in Australia of the company or of another company that, by virtue of section 5, is deemed to be related to the company; or (v) software production, or proposed software production, in Australia by the company or by another company that, by virtue of section 5, is deemed to be related to the company; or (b) performed by the company, acting as a research organization, directly in relation to: (i) the manufacture, or proposed manufacture, in Australia, of goods by another person; (ii) mining operations, or proposed mining operations, in Australia of another person; (iii) construction operations, or proposed construction operations, in Australia of another person; or (iv) software production, or proposed software production, in Australia by another person. (6) Where, at any time, a company commences to use research and development plant or a prototype for a purpose other than industrial research and development, the company shall, for the purposes of the definitions of eligible plant expenditure and eligible prototype expenditure in subsection (1), be deemed to have disposed of the plant or prototype at that time. (7) A reference in the definitions referred to in subsection (6) to consideration which has been or will be received in respect of the disposal, loss or destruction of plant or a prototype shall be read as a reference to: (a) in the case of the sale of the plant or prototype—such amount as, in the opinion of the Board, is the sale price less the expenses of the sale; (b) in the case of the loss or destruction of the plant or prototype—such amount as, in the opinion of the Board, is the amount or value which has been or will be received under a policy of insurance or otherwise in respect of the loss or destruction; (c) in the case of the sale of the plant or prototype with other assets where no separate value is allocated to the plant or prototype— such part of the sale price as is determined by the Board less such part of the expenses of the sale as is determined by the Board; and (d) in the case of the disposal of the plant or prototype otherwise than by sale or in a case where the plant or prototype is deemed to have been disposed of—the amount determined by the Board to be the value (if any) of the plant or prototype at the time of the disposal. (8) Without limiting the generality of the references in this Act to the manufacture of goods, those references shall be deemed to include a reference to the refining of petroleum and to the concentration of a metal or the treatment or processing of a metal after its concentration, or, in the case of a metal not requiring concentration, the application to the metal of a treatment or process which, if the metal had required concentration, would not have been applied until after the concentration. (9) A company shall be deemed for the purposes of this Act to have carried on the manufacture of goods, construction operations or software production in a year if, under a contract entered into between the company and any other person, that other person manufactured goods, carried on construction operations or carried on software production, as the case may be, for the company in that year. #### 5 Related companies (1) For the purposes of this Act: (a) where a company is a subsidiary of another company, the first‑mentioned company and that other company shall be deemed to be related to each other; and (b) where 2 or more companies are each subsidiaries of another company, those companies and that other company shall be deemed to be related to each other. (2) For the purposes of subsection (1), where a company has shareholding interests in the shares in another company exceeding in amount one‑half of the total of the amounts paid on all shares in the other company, that other company shall be deemed to be the subsidiary of the first‑mentioned company. (3) For the purposes of this section: (a) a company has a shareholding interest in the shares in another company if the first‑mentioned company is beneficially entitled to, or is beneficially entitled to an interest in, any shares in the other company, whether or not the whole or any part of the legal ownership of the shares is vested in the first‑mentioned company; and (b) the amount of the shareholding interest is an amount equal to the value of the shares, or of the first‑mentioned company’s interest in the shares, as the case requires, on the basis that the value of the shares is equal to the amount paid on the shares. (4) For the purposes of this section, where a company (in this subsection referred to as the first company) has shareholding interests in the shares in a company (in this subsection referred to as the second company) that has shareholding interests in the shares in another company (in this subsection referred to as the third company), the first company shall be deemed to have shareholding interests in the shares in the third company (in addition to any other shareholding interests) of an amount that bears to the amount of the shareholding interests of the second company in the shares in the third company the same proportion as the amount of the shareholding interests of the first company in the shares in the second company bears to the total of the amounts paid on all shares in the second company. (5) In ascertaining for the purposes of the application of subsection (4) the extent and amount of the shareholding interests of a company in the shares in another company, there shall be taken into account any shareholding interest which that first‑mentioned company is to be deemed to have in the shares in that other company by any other application or applications of that subsection or this subsection. (6) A reference in this section to shares in a company shall be read as a reference to shares in, or stock forming part of, the capital of a company and a reference in this section to an amount paid on shares in a company shall be read as including a reference to an amount treated by the company as having been so paid. (7) In this section: > company does not include an unincorporated body or association of persons. > share, in relation to a company, means a share of a kind carrying voting rights on all questions at general meetings of the company. #### 6 Approval of research organizations etc. (1) The Board may, by notice published in the Gazette: (a) declare that a specified research organization is, or shall be deemed to have been at or from any time, an approved research organization for the purposes of this Act; (aa) declare that a specified company (being a body or association of persons that is unincorporate) is, or shall be deemed to have been at or from any time (whether before or after the commencement of this paragraph), a recognized company for the purposes of this Act; (b) declare that a specified body in Australia is, or shall be deemed to have been at or from any time, a recognized professional institute for the purposes of this Act; and (c) revoke a declaration made under paragraph (a), (aa) or (b) with effect from the date of publication of the notice of revocation in the Gazette. (1A) The Board may, in making a declaration under paragraph 6(1)(a), specify a field of expertise or an activity in respect of which a specified research organization is an approved research organization, and, in that event, any industrial research and development carried out by the research organization in any field of expertise or activity not specified under this subsection shall be deemed, for the purpose of the definition of eligible contract expenditure in subsection 4(1), not to be industrial research and development. (2) A declaration made under paragraph 6(a) or (b) of the previous Act before the commencement of this Act, being a declaration which has not been revoked under paragraph 6(c) of that Act before the commencement of this Act, shall, on the commencement of this Act, be deemed, for the purposes of this Act, to be a declaration made by the Board under paragraph (1)(a) or (b) of this section, as the case requires. #### 7 Approved employees (1) If a committee is satisfied that an employee of a company (not being a research organization) who does not have a professional qualification has skills, ability and experience that fit him to carry out work by way of industrial research and development for the company, the committee may recommend to the Board that the employee be approved as an approved employee of the company for the purpose of the definition of professional or technical research and development work in subsection 4(1), and the Board may then approve the employee as such an approved employee. (1A) A recommendation under subsection (1) may include a recommendation that an employee be approved as an approved employee only in respect of a specified field of expertise or a specified activity, and, if the Board then gives its approval under subsection (1), the employee shall be deemed, for the purposes of the definition of professional or technical research and development work in subsection 4(1), not to be an approved employee in respect of work he performs in any field of expertise or activity not specified under this subsection. (2) If a committee recommends to the Board that the approval of an employee of a company as an approved employee of the company for the purpose of the definition of professional or technical research and development work in subsection 4(1) be revoked, the Board may revoke the approval of the employee as such an approved employee. (3) A revocation of an approval of an employee of a company does not apply in relation to a grant year before the grant year next commencing after the revocation of the approval. (4) An approval of an employee of a company (not being a research organization) given under subsection 6A(1) of the previous Act before the commencement of this Act, being an approval which has not been revoked under subsection 6A(2) of that Act before the commencement of this Act, shall, on the commencement of this Act, be deemed, for the purposes of this Act, to be an approval given by the Board under subsection (1) of this section. ## Part III—Grants ### Division 1—Commencement grants #### 23 Commencement grants (1) Grants of financial assistance to eligible companies in respect of expenditure on industrial research and development shall be made as authorized by the Board in accordance with subsection (2). (2) Where: (a) an eligible company applies for a grant under this Division in respect of eligible expenditure of the company in respect of a grant year; (b) the Board is satisfied that the company is carrying on, or will carry on in that grant year or within a reasonable period after the end of that grant year, the manufacture of goods, mining operations or construction operations in Australia; and (c) the Board is satisfied as to all other matters relevant to the eligibility of the company for the grant; the Board shall, subject to this Act and to any relevant directions of the Minister under section 19, authorize payment to the company of a grant of financial assistance of an amount equal to: (d) in the case of the grant year commencing on 1 July 1976— whichever is the lesser of an amount equal to 25 per centum of the eligible expenditure of the company in respect of the grant year or $15,000; (e) in the case of any of the next 4 succeeding grant years— whichever is the lesser of the following amounts: (i) an amount equal to such percentage of the eligible expenditure of the company in respect of the grant year as is prescribed in relation to that grant year, being a percentage that does not exceed 50 per centum; (ii) such amount as is prescribed in relation to that grant year, being an amount that does not exceed $25,000; (f) in the case of the grant year commencing on 1 July 1981— whichever is the lesser of an amount equal to 50 per centum of the eligible expenditure of the company in respect of the grant year or $40,000; or (g) in the case of any other grant year— whichever is the lesser of the following amounts: (i) an amount equal to such percentage of the eligible expenditure of the company in respect of the grant year as is prescribed in relation to that grant year, being a percentage that does not exceed 50 per centum; (ii) such amount as is prescribed in relation to that grant year, being an amount that does not exceed $40,000. (2A) A grant is not payable under this section to a company in respect of eligible expenditure of the company in respect of the grant year that commenced on 1 July 1978, or any succeeding grant year, unless the eligible expenditure of the company in respect of that grant year consists of, or includes, one of the following amounts: (a) an amount of eligible contract expenditure that exceeds: (i) in the case of the grant year that commenced on 1 July 1978 or any of the next 2 succeeding grant years—$1,500; or (ii) in the case of the grant year commencing on 1 July 1981 or any succeeding grant year—$2,000; (b) any amount of eligible salary expenditure. (3) Regulations made for the purposes of subparagraph (2)(e)(i) or (ii) in relation to a grant year shall not be made after 31 March in the immediately preceding grant year. #### 24 Maximum aggregate of grants to a Company (1) In this section, previous grant, in relation to a company in respect of a grant year, means: (a) a grant of financial assistance to which the company has become, or, in the opinion of the Board, will become, entitled under the previous Act; or (b) a commencement grant to which the company has become, or, in the opinion of the Board, will become, entitled under this Act in respect of a grant year earlier than that first‑mentioned grant year. (2) Where: (a) an eligible company applies for a commencement grant in respect of a grant year; and (b) the aggregate of previous grants to the eligible company and companies that, by virtue of section 5, are deemed to be related to that company at any time during that grant year is not less than the prescribed amount in relation to that grant year; the eligible company is not entitled to a commencement grant in respect of that grant year. (3) Where: (a) an eligible company applies for a commencement grant in respect of a grant year; (b) the aggregate of previous grants to the company and companies that, by virtue of section 5, are deemed to be related to that company at any time during that grant year is less than the prescribed amount in relation to that grant year; and (c) the sum of the aggregate of those previous grants and of any commencement grants to which the eligible company and those related companies would, but for this subsection, be entitled in respect of that grant year is an amount that exceeds the prescribed amount in relation to that grant year; then: (d) if there are no companies that, by virtue of section 5, are deemed to be related to the eligible company at any time during that grant year—the commencement grant to which the eligible company would, but for this subsection, be entitled in respect of that grant year shall be reduced by the amount of the excess; and (e) if there are companies that, by virtue of section 5, are deemed to be related to the eligible company at any time during that grant year and which, but for this subsection, would be entitled to commencement grants in respect of that grant year—the commencement grant to which the eligible company and each of those related companies would, but for this subsection, be entitled in respect of that grant year shall be reduced by such respective amounts as the Board determines, being amounts the sum of which is equal to that excess. (4) In this section, prescribed amount, in relation to a grant year, means: (a) in the case of the grant year that commenced on 1 July 1980 or any preceding grant year—$125,000; or (b) in the case of any other grant year—$200,000. #### 25 Limitation of number of years in respect of which grants payable to a company (1) In this section, grant year means a year that is a grant year for the purposes of the previous Act or a grant year for the purposes of this Act, as the case requires. (2) An eligible company is not entitled to a commencement grant in respect of any grant year subsequent to the fourth consecutive grant year after the grant year in respect of which it first applies for a commencement grant. (3) An eligible company is not entitled to a commencement grant in respect of the first grant year in respect of which it applies for a commencement grant if the sum of: (a) the number of grants of financial assistance (if any) received by the eligible company under the previous Act; (b) the number of grants of financial assistance (if any) received under the previous Act by any company that, by virtue of section 5, is deemed to be, or to have been, related to the eligible company at any time during the grant year; and (c) the number of commencement grants (if any) to which any company that, by virtue of section 5, is deemed to be, or to have been, related to the eligible company at any time during the grant year has become or, in the opinion of the Board, will become entitled; is or exceeds 5. (4) An eligible company is not entitled to a commencement grant in respect of a grant year (in this subsection referred to as the current grant year) subsequent to the first grant year in respect of which it applied for a commencement grant if the sum of: (a) the number of grants of financial assistance (if any) received by the eligible company under the previous Act; (b) the number of grants of financial assistance (if any) received under the previous Act by any company that, by virtue of section 5, is deemed to be, or to have been, related to the eligible company at any time during the current grant year; (c) the number of commencement grants (if any) to which any company that, by virtue of section 5, is deemed to be, or to have been, related to the eligible company at any time during the current grant year has become or, in the opinion of the Board, will become entitled; and (d) the number of grant years from and including the first grant year in respect of which the eligible company applied for a commencement grant (but not including the current grant year); is or exceeds 5. (5) A reference in this section to a grant received by a company that, by virtue of section 5, is deemed to be, or to have been, related to an eligible company at any time during a grant year is a reference to a grant received by such a company in respect of any grant year, whether or not the company was or would have been deemed, by virtue of section 5, to have been related to the eligible company at any time during that last‑mentioned grant year. #### 26 Grants not payable to a company where aggregate research and development expenditure in preceding 8 years exceeds $250,000 (1) In this section, relevant expenditure, in relation to a company, means: (a) expenditure that is salary expenditure, contract expenditure (other than expenditure of the kind referred to in paragraph (a) of the definition of contract expenditure in subsection 5(1) of the previous Act), net plant expenditure or net prescribed expenditure of the company for the purposes of the previous Act in respect of a year that is a grant year for the purposes of the previous Act; and (b) expenditure that is eligible expenditure of the company for the purposes of this Act in respect of a year that is a grant year for the purposes of this Act. (2) Where: (a) an eligible company applies for a commencement grant in respect of a grant year and, if that grant year is a year other than the year commencing on 1 July 1976, the company has not applied for a commencement grant in respect of a previous grant year; and (b) the aggregate of the relevant expenditure of the eligible company, and of companies that, by virtue of section 5, are deemed to be related, at any time during the first‑mentioned grant year, to that company, in respect of all or any of the years included in the period of 8 years immediately preceding the commencement of the first‑mentioned grant year exceeds $250,000; the eligible company is not entitled to a commencement grant in respect of that first‑mentioned grant year or any subsequent grant year. #### 26A Effect of reconstruction of companies Where the Board is satisfied that a company that has, after 17 August 1982, applied for a commencement grant in respect of the grant year ending on 30 June 1982 or in respect of any subsequent grant year is carrying on operations in the nature of industrial research and development the whole or a substantial part of which was previously carried on by another company that became, or will become, entitled to a commencement grant, or to a grant of financial assistance under the previous Act, the Board may, for the purposes of the application, treat the applicant company and the other company as one company. #### 27 Company to undertake to exploit results of research and development A company is not eligible for a commencement grant in respect of a grant year unless the company has given an undertaking in writing to the Board that the company will exploit, on normal commercial terms, and otherwise in a manner that will be for the benefit of the Australian economy, the results of the industrial research and development in relation to which the eligible expenditure of the company in respect of that grant year was incurred. #### 28 Adjustment of grant by reason of Commonwealth financial assistance (1) Where an eligible company has received (otherwise than under this Division) financial assistance from the Commonwealth, or out of moneys provided by the Commonwealth, and it appears to the Board that that financial assistance has aided the company to perform industrial research and development in a grant year, the Board may reduce the amount of any commencement grant to the company in respect of that grant year to such extent as it thinks appropriate by reason of that financial assistance. (2) In making a reduction under subsection (1), the Board shall not take into account any amount of financial assistance that it has taken into account in making a reduction under section 32B. #### 29 Abuse of Act Where the Board is of the opinion that: (a) an act or thing (including the making of an agreement, arrangement or payment, the incorporation of a company or the allocation of expenditure as between different years) has been done with a view to the obtaining of, or to affecting the amount of, a commencement grant; and (b) the act or thing is of such a nature that, having regard to the object of this Act, it constitutes an attempt to abuse this Act; the Board may, for the purposes of this Division, disregard any expenditure in or in relation to the doing of that act or thing or make such adjustment to the amount of the eligible expenditure of the company as it thinks necessary to prevent the abuse. #### 29A Commencement grants and advances not to exceed moneys available The Board shall not authorize payment of a commencement grant or of an advance in respect of a commencement grant unless moneys appropriated by the Parliament are available for the payment of that grant or advance, as the case may be, together with all other commencement grants, and advances in respect of commencement grants, that have been authorized but not paid. ### Division 2—Project grants #### 30 Agreements with respect to projects (1) Where: (a) an eligible company is carrying out, or proposes to carry out, a project for industrial research and development (other than a project referred to in paragraph (b)); (aa) a company (other than an eligible company) is carrying out, or proposes to carry out, a project for industrial research and development on behalf of 2 or more bodies corporate, where: (i) at least one of those bodies corporate is an eligible company; and (ii) of those bodies corporate, at least one is not deemed to be related to any other; or (b) a company (whether or not an eligible company) has made an arrangement for the carrying out of a project for industrial research and development by 2 or more companies (which include an eligible company or eligible companies, but need not include the first‑mentioned company) and, under the arrangement, no company other than the first‑mentioned company is to apply to the Board for a grant under this Division in respect of the project; and the company applies to the Board for a grant under this Division in respect of the project, the Board may, subject to this Act, to any regulations referred to in paragraph 42(aa) and to any relevant directions of the Minister under section 19, enter into an agreement, on behalf of the Commonwealth, with the company for and in relation to the making of a grant of financial assistance under this Division to the company in respect of expenditure in respect of the project incurred or to be incurred: (c) in the case of an application by a company referred to in paragraph (a) or (aa)—by the company; or (d) in the case of an application by a company in accordance with an arrangement referred to in paragraph (b)—by such of the companies by which, under the arrangement, the project is being carried out or is proposed to be carried out as is an eligible company or are eligible companies. (2) Subsection (1) does not apply in relation to a project that is to be commenced after 1 July 1986. #### 31 Total amounts allocated and committed under this Division in respect of a year (1) The Minister shall, as soon as practicable after each 1 July, by notice in writing to the Chairman: (a) specify the total amount allocated for project grants during the year commencing on that date; and (b) if the year is a grant year, specify the total amount of the commitments the Board may incur during the year. (2) The Minister may, during any year commencing on 1 July, by notice in writing to the Chairman: (a) specify an amount as an additional amount allocated for project grants during the year; and (b) if the year is a grant year, specify an amount as an additional amount of commitments the Board may incur during the year. (3) In entering into agreements under section 30, the Board shall ensure that: (a) the total amount of project grants payable during a year do not exceed the sum of the amounts specified under paragraphs (1)(a) and (2)(a) in respect of that year; and (b) if the year is a grant year, the total amount of commitments it incurs in respect of the year does not exceed the sum of the amounts specified under paragraphs (1)(b) and (2)(b) in respect of that year. (4) In this section: (a) a reference to the Chairman shall, if there is an acting Chairman, be read as a reference to the acting Chairman; and (b) a reference to commitments, in relation to a year, shall be read as a reference to the amounts that will become payable at any time as a result of the Board entering into agreements under section 30 during that grant year. #### 32 Restrictions applicable to project grant agreements (1) There shall be specified in a project grant agreement: (a) the year or years in which any project grant is, or project grants are, to be payable under the agreement; and (b) the amount of the project grant, or the aggregate of the amounts of the project grants, payable under the agreement in that year or in each of those years. (2) Where a project grant agreement provides for the payment of project grants in each of 2 or more years, the number of those years shall not exceed 5 or such greater number as the Minister approves in relation to that agreement. (3) A project grant agreement shall not provide for the payment of a project grant in respect of expenditure in a year subsequent to the year commencing on 1 July 1988. (4) The provisions of a project grant agreement shall be such that, unless the Minister otherwise approves in relation to the agreement, the amount of the project grant, or of the aggregate of the project grants, payable under the agreement shall not exceed an amount equal to 50 per cent of the total amount that, in the opinion of the Board, is or will be the expenditure by the company or companies, after the date of the making of the application in pursuance of which the agreement is entered into, in respect of the project to which the agreement relates. (6) In entering into a project grant agreement, the Board shall ensure that the sum of so much of the amounts of project grants payable in a year as is attributable to expenditure of a company, or of 2 or more companies that are, by virtue of section 5, deemed to be related to each other at any time during that year, does not exceed $750,000 or such greater amount as the Minister approves in relation to that company, or those companies, in respect of that year. (7) Without prejudice to the duty of the Board to comply with the provisions of this Act and to observe the limits of its powers under this Act, a project grant agreement is not invalidated by reason of a provision of this Act not having been complied with by the Board in relation to the agreement or by reason of its not being within those limits. (8) In this section, project grant agreement means an agreement entered into by the Board with a company under section 30. #### 32A Results of projects to be exploited The Board shall not enter into an agreement under subsection 30(1) with a company in relation to the making of a grant of financial assistance in respect of expenditure in respect of a project for industrial research and development unless it is satisfied that the results of that industrial research and development will be exploited on normal commercial terms and otherwise in a manner that will be for the benefit of the Australian economy. #### 32B Adjustment of project grant by reason of Commonwealth financial assistance (1) Where a company has received (otherwise than under this Act) financial assistance from the Commonwealth, or out of moneys provided by the Commonwealth, and it appears to the Board that that financial assistance has aided the company to carry out a project for industrial research and development, the Board may reduce the amount of any project grant to the company in respect of that project to such extent as it thinks appropriate by reason of that financial assistance. (2) In making a reduction under subsection (1), the Board shall not take into account any amount of financial assistance that it has taken into account in making a reduction under section 28. #### 33 Repayment of grant on breach of agreement Nothing in this Division shall be taken as preventing the inclusion in an agreement with a company under section 30 of provision for the repayment by the company to the Commonwealth, on breach by the company of the agreement or in any other circumstances specified in the agreement, of the whole or a part of a grant made to the company under the agreement. ### Division 3—Miscellaneous #### 34 Applications (1) The Board shall not authorize a grant to a company under Division 1, or enter into an agreement with a company under Division 2, unless the company desiring to obtain a grant has made application in writing to the Board. (2) Subject to the regulations, an application shall be in accordance with a form approved by the Board. (3) An application shall be deemed not to have been made until it has been received on behalf of the Board by a member of the staff assisting the Board or by a person appointed by the Board to receive applications. (3A) An application by a company for a commencement grant in respect of the grant year that ended on 30 June 1983 or any subsequent grant year shall be deemed not to have been made unless: (a) it is received as mentioned in subsection (3) on or before the first relevant date next after the end of that grant year; or (b) on or before the first relevant date next after the end of that grant year, the company has given the Board notice in writing stating that it will be unable to make an application for a commencement grant in respect of that grant year on or before that date and the application is received as mentioned in subsection (3) on or before the second relevant date next after the end of that grant year. (3B) A notice for the purposes of paragraph (3A)(b) shall be deemed not to have been given until it has been received on behalf of the Board by a member of the staff assisting the Board or by a person appointed by the Board to receive such notices. (3C) An application by a company for a commencement grant in respect of the grant year that ended on 30 June 1981 or any previous grant year shall be deemed not to have been made unless it was received as mentioned in subsection (3) on or before 17 August 1982. (4) The Board may refuse to consider an application unless the applicant furnishes such further information, or makes available to the Board such books or records, as the Board specifies, being information, books or records that the Board requires for the performance of its functions under this Act, including the preparation of a report of the Board under section 40. (5) Subject to any direction of the Minister under section 19, the order in which the Board deals with applications for commencement grants, or advances in respect of commencement grants, is in the discretion of the Board. (6) Subsection 19(3) does not apply in relation to a direction of the Minister referred to in subsection (5) of this section. (7) In subsection (3A): > first relevant date means 30 September or such later date as is prescribed. > second relevant date means 30 November or such later date as is prescribed. (8) Regulations prescribing a date for the purposes of subsection (7): (a) shall specify the grant year in respect of which they apply; and (b) may be made before, on or after that date. #### 34A Effect of late application Where an application for a commencement grant in respect of a grant year is made by a company, as provided by paragraph 34(3A)(b), after 30 September in a year, the Board shall not authorize payment of a commencement grant to the company in respect of that grant year before 1 July in the following year. #### 35 Advances in respect of grants (1) Subject to subsection (1B), the Board may, in its discretion, authorize the payment to a company of an advance in respect of a commencement grant that may become payable to the company. (1A) Subject to any direction of the Minister under section 19, the Board may authorize the payment to a company of an advance in respect of a project grant that may become payable to the company. (1B) The Board shall not, under subsection (1), authorize the payment to a company of an advance in respect of a commencement grant unless the company gives adequate security for the repayment to the Commonwealth by the company of any amount repayable under subsection (2) in relation to the advance. (2) Where an advance has been made to a company in pursuance of subsection (1) or subsection (1A) in respect of a grant, the company is liable, if the grant does not become payable or the amount of the grant is less than the advance, to repay to the Commonwealth, upon demand being made by the Minister for Finance, the amount of the advance or so much of the advance as exceeds the amount of the grant, as the case may be. (3) Without limiting the rights of the Commonwealth under any security given in respect of an advance made to a company in pursuance of subsection (1A) or (1B), an amount repayable under subsection (2) is recoverable by the Commonwealth from the company in a court of competent jurisdiction as a debt due to the Commonwealth. ## Part IV—Miscellaneous #### 36 Moneys to be appropriated Payments of grants, and of advances in respect of grants, shall be made out of moneys appropriated by the Parliament for the purposes of this Act. #### 38 Recovery of overpayments to a person (1) Where an amount of grant to a company has been paid in consequence of the making of a statement, or the presentation of a book, record or document, by or on behalf of the company that was, whether or not to the knowledge of the company or the person making the statement or presenting the book, record or document, false or misleading, an amount equal to the amount so paid is recoverable by the Commonwealth from the company in a court of competent jurisdiction as a debt due to the Commonwealth. (2) For the purposes of subsection (1), a certificate under the hand of the Chairman or acting Chairman that an amount of grant has been paid in consequence of the making of a statement, or the presentation of a book, record or document, is prima facie evidence of the matters stated in the certificate. #### 40 Annual report (1) The Board shall, as soon as practicable after each 30 June, furnish to the Minister a report on the operation of this Act, with particular reference to its operation during the year that ended on that date. (2) Reports under this section: (a) may include information or comments concerning the effect of this Act; (b) shall include statements of: (i) the names of companies to which the Board has authorized the payment of commencement grants during the relevant year and the respective amounts of those commencement grants; and (ii) the names of the companies with which the Board has entered into agreements under Division 2 of Part III during the relevant year and the respective amounts of the project grants provided for under those agreements; (c) shall include such information concerning the classes of manufacturing or mining in relation to which the Board has authorized the payment of commencement grants during the relevant year, and in relation to which the Board has entered into agreements under Division 2 of Part III during the relevant year, as the Board is satisfied can be included in those reports without disclosing matters relating to the operations or affairs of particular companies the disclosure of which would be likely to prejudice the business interests of those companies; (d) shall include: (i) statements of the names of persons with which the Board has made arrangements under section 39 during the relevant year for the carrying out of projects; (ii) statements of the respective amounts of the payments to those persons provided for under those arrangements; and (iii) particulars of the progress of those projects; and (e) shall include particulars of any directions given by the Minister under section 19, 19C or 21A during the relevant year. (3) The Minister shall cause a copy of each report under this section to be laid before each House of the Parliament within 15 sitting days of that House after receipt of the report by the Minister. #### 41 Review of certain decisions of Board (1) In this section: > decision has the same meaning as in the Administrative Appeals Tribunal Act 1975. > decision of the Board means a decision of the Board under this Act in connexion with an application for a commencement grant. (2) A company which is affected by a decision of the Board and which is dissatisfied with the decision may, by notice in writing given to the Board within a period of 30 days after the date on which the decision first comes to the notice of the company, or within such further period as the Board allows, request the Board to reconsider the decision. (3) There shall be set out in the request the ground on which the request is made. (4) Upon receipt of the request, the Board shall reconsider the decision and may either confirm the decision or vary the decision in such manner as it thinks fit. (5) The Board shall, by notice in writing to the company which made the request, inform the company of the result of its reconsideration of the decision. (6) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Board that have been confirmed or varied under subsection (4). #### 41A Statements to accompany notification of decisions (1) Where notice in writing is given to a company affected by a decision of the Board that the decision has been made, the notice shall include a statement to the effect that: (a) the company, as the case may be, if dissatisfied with the decision, may seek a reconsideration of the decision by the Board in accordance with subsection 41(2); and (b) a company whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with a decision of the Board upon that reconsideration confirming or varying that first‑mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision as so confirmed or varied. (2) Where the Board confirms or varies a decision of the Board under subsection 41(4) and gives to a company notice in writing of the confirmation or variation of the decision, the notice shall include a statement to the effect that a company whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if dissatisfied with the decision as so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision. (3) Any failure to comply with the requirements of subsection (1) or (2) in relation to a decision of the Board (including a decision under subsection 41(4)) does not affect the validity of that decision. (4) In this section, decision and decision of the Board have the same respective meanings as in subsection 41(1). #### 42 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular: (aa) prescribing matters that are to be taken into account by the Board when determining whether it should enter into an agreement with a company under subsection 30(1); (ab) prescribing matters relating to the calling of meetings, or to the conduct of meetings, of the Advisory Committee, the Technical Standing Committee or a committee appointed under section 19B; (a) prescribing matters relating to the making of applications for grants; and (b) requiring an application for a grant, or a document, book or record furnished for the purposes of this Act, to be verified by statutory declaration.