Industry Research and Development Act 1986
PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the Industry Research and Development Act 1986. SECTION 2 2 COMMENCEMENT
This Act shall come into operation on 1 July 1986. SECTION 3 3 OBJECT OF ACT
The object of this Act is to position Australia as a leading innovation nation by:
(a) facilitating the provision of independent strategic advice about investment in industry, innovation, science and research; and
(b) supporting and encouraging collaboration in the development and delivery of programs relating to industry, innovation, science and research; and
(c) authorising spending on programs relating to industry, innovation, science and research; and
(d) promoting the development, and improving the efficiency and international competitiveness, of Australian industry by encouraging R&D activities, innovation and science activities and venture capital activities.
SECTION 4
INTERPRETATION
4(1)
In this Act, unless the contrary intention appears:
4(2)
(Repealed by No 93 of 2011)
4(3)
(Repealed by No 15 of 2004)
4(4)
(Repealed by No 15 of 2004)
4(5)
(Repealed by No 63 of 2016)
4(6)
(Repealed by No 63 of 2016)
4(7)
(Repealed by No 31 of 2014)
4(8)
For the purposes of this Act, the Pooled Development Funds Act 1992, the Venture Capital Act 2002 and any other Act, a person gives information, or produces a document, to the Board if the person gives the information, or produces the document, to:
(a) the Board; or
(b) a member of the Board; or
(c) a committee; or
(d) a member of a committee; or
(e) a member of the staff assisting the Board or a committee (see section 25); or
(f) a consultant assisting the Board or a committee (see section 25).
4(9)
A reference in this Act to research is a reference to research in any field.
SECTION 5
5
APPLICATION
This Act extends to every external Territory referred to in the definition of Australia .
PART II - ADMINISTRATION
SECTION 6
6
ESTABLISHMENT OF INDUSTRY INNOVATION AND SCIENCE AUSTRALIA
The body known immediately before the commencement of the Industry Research and Development Amendment (Industry Innovation and Science Australia) Act 2021 as Innovation and Science Australia is continued in existence with the new name Industry Innovation and Science Australia.
SECTION 7
7
FUNCTIONS OF BOARD
The functions of the Board are:
(aa) to provide independent strategic advice to the Secretary, the Minister and other Ministers in relation to industry, innovation, science and research matters; and
(ab) to undertake audits of, and prepare, review and amend plans in relation to, industry, innovation, science and research matters; and
(ac) to promote investment in industry, innovation, science and research; and
(ad) to commission and publish research in relation to industry, innovation, science and research matters; and
(aaa) (Repealed by No 63 of 2016)
(a) such functions as are conferred on it by a provision of this Act (other than this section); and
(b) to evaluate, and to advise the Minister about, the Pooled Development Funds Act 1992 and the Venture Capital Act 2002, and the Commonwealth's income tax laws as they operate in relation to those Acts; and
(b) (Repealed by No 15 of 2004)
(c) such functions as are conferred on it by the Pooled Development Funds Act 1992, the Venture Capital Act 2002 or any other Act; and
(ca) to give information it obtains under Part 2, 3 or 4 of the Venture Capital Act 2002 to the Commissioner for the purposes of implementing and administering the taxation law (within the meaning of the Taxation Administration Act 1953); and
(d) to do anything incidental or conducive to the performance of any of the above functions.
SECTION 8
8
POWERS OF BOARD
The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. SECTION 9 CONSTITUTION OF BOARD 9(1)
The Board shall consist of:
(a) a Chairperson; and
(aa) a Deputy Chairperson; and
(b) where the Minister considers it appropriate - the person who, at any time, is performing the duties of an office or position in the Australian Public Service that is designated by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(c) not less than 3, or more than 12, other members.
9(2)
The appointed members shall be appointed by the Minister in writing.
9(3)
The appointed members shall be appointed as part-time members.
9(4)
A member holds office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the Minister in writing.
9(5)
The performance of the functions or the exercise of the powers of the Board is not affected by a vacancy in the office of Chairperson or Deputy Chairperson, or because the number of members referred to in paragraph (1)(c) falls below 3 for not longer than 6 months.
SECTION 10
PERIOD OF APPOINTMENT OF MEMBERS
10(1)
Subject to this Act, an appointed member holds office for such period, not exceeding 3 years, as is specified in the instrument of the member's appointment, but he or she is eligible for re-appointment.
10(2)
A person must not be appointed as an appointed member if the person has, at any time before that appointment, served 2 consecutive terms as a member of the Board (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
10(3)
Before the Minister appoints a person as an appointed member for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the appointed members are appointed do not all end at the same time.
SECTION 11 11 DUTIES OF CHAIRPERSON
It is the duty of the Chairperson to ensure the efficient and orderly conduct of the business of the Board, and for that purpose, the Chairperson:
(a) must make, or cause to be made, such inquiries as the Chairperson thinks necessary into:
(b) may make, or cause to be made, to the Board such reports in relation to those applications as the Chairperson thinks fit; and
(c) may determine the form of the records to be kept by the Board.
11(2)
(Repealed by No 93 of 2011)
SECTION 12
REMUNERATION AND ALLOWANCES
12(1)
The appointed members shall be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
12(2)
This section has effect subject to the Remuneration Tribunal Act 1973.
SECTION 13 LEAVE OF ABSENCE 13(1)
The Minister may grant leave to the Chairperson to be absent from a meeting or meetings of the Board.
13(2)
The Chairperson may grant leave to another member to be absent from a meeting or meetings of the Board.
SECTION 14 14 RESIGNATION
The Chairperson, the Deputy Chairperson or another appointed member may resign the office of Chairperson, Deputy Chairperson or member, as the case may be, by writing signed by him or her and delivered to the Minister.
SECTION 15
TERMINATION OF APPOINTMENT
15(1)
The Minister may terminate the appointment of an appointed member:
(a) for misbehaviour; or
(b) for physical or mental incapacity.
15(2)
If an appointed member:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) fails, without reasonable excuse, to comply with the member's obligations under section 16; or
(c) is absent from 3 consecutive meetings of the Board otherwise than:
SECTION 16
DISCLOSURE OF INTERESTS BY MEMBERS OF BOARD
16(1)
A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Board shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the Board.
16(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Board and the member shall not, unless the Minister or the Board otherwise determines:
(a) be present during any deliberation of the Board with respect to that matter; or
(b) take part in any decision of the Board with respect to that matter.
16(3)
For the purpose of the making of a determination by the Board under subsection (2) in relation to a member who has made a disclosure under subsection (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Board for the purpose of making the determination; or
(b) take part in the making by the Board of the determination.
16(4)
(Repealed by No 164 of 2007)
SECTION 17 ACTING APPOINTMENTS 17(1)
The Minister may appoint the Deputy Chairperson, a member or other person to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Chairperson;
17(1A)
The Minister may appoint a member or other person to act as Deputy Chairperson:
(a) during a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Deputy Chairperson;
17(2)
Where the number of members referred to in paragraph 9(1)(c) is less than 10, the Minister may appoint a person who is not a member to act as a member, but a person so appointed shall not continue so to act:
(a) if and after the number of those members ceases to be less than 10; or
(b) for longer than 12 months.
17(3)
The Minister may appoint a person who is not a member to act in the place of a member referred to in paragraph 9(1)(c) during any period, or during all periods, when the member is acting as Chairperson, is absent from Australia or is, for any other reason, unable to perform the duties of the office of member, but a person so appointed shall not continue so to act for longer than 12 months.
17(4)
(Repealed by No 46 of 2011)
17(5)
(Repealed by No 46 of 2011)
17(6)
(Repealed by No 46 of 2011)
17(7)
(Repealed by No 46 of 2011)
17(8)
(Repealed by No 164 of 2007)
17(9)
(Repealed by No 46 of 2011)
SECTION 18 MEETINGS OF BOARD 18(1)
The Board shall hold such meetings as are necessary for the efficient performance of its functions.
18(2)
The Chairperson:
(a) may, at any time, convene a meeting of the Board; and
(b) shall, if directed by the Minister to convene a meeting of the Board, convene a meeting of the Board.
18(3)
The Chairperson shall preside at all meetings of the Board at which he or she is present.
18(4)
If the Chairperson is not present at a meeting of the Board:
(a) the Deputy Chairperson is to preside; or
(b) if the Deputy Chairperson is not present - the members present must appoint one of their number to preside at the meeting.
18(5)
At a meeting of the Board, 4 members constitute a quorum.
18(6)
Questions arising at a meeting of the Board shall be determined by a majority of the votes of the members present and voting and:
(a) if the Chairperson is present - the Chairperson has a deliberative vote and, in the case of an equality of votes, also has a casting vote; or
(b) if the Chairperson is not present and a question arising at the meeting cannot be determined by a majority of the votes of the members present and voting - the question shall be deferred to a meeting at which the Chairperson is present.
18(7)
The Board shall cause minutes of its meetings to be kept.
18(8)
(Repealed by No 164 of 2007)
SECTION 18A 18A MINISTER MAY GIVE DIRECTIONS CONCERNING THE PROVISION OF TECHNICAL ASSESSMENTS
(Repealed by No 63 of 2016)
SECTION 19
ADDITIONAL FUNCTIONS OF BOARD
Directions conferring additional functions
19(1)
The Minister may, by notifiable instrument, give directions to the Board that a function specified in the direction (being a function relating to the object of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002) is an additional function of the Board.
Directions about the performance of functions and exercise of powers
19(2)
The Minister may, by notifiable instrument, give written directions to the Board about the performance of its functions or the exercise of its powers.
19(3)
Without limiting subsection (2), the Minister may give directions to the Board in relation to:
(a) the provision of technical assessments to the Minister in relation to programs or activities, or proposals for programs or activities, under or in connection with this Act; or
(b) the provision of a report or advice on a matter that relates to:
(c) policies and practices to be followed by the Board in the performance of its functions and the exercise of its powers.
19(4)
Subsection (2) does not empower the Minister to direct that the Board perform any of its functions, or exercise any of its powers, in a particular way in a particular case.
Limits and obligations relating to directions under this section
19(5)
A direction under subsection (1) or (2) must not confer a function on the Board to commit or authorise the expenditure of Commonwealth money.
19(6)
The Board must comply with a direction given under this section.
SECTION 19A
19A
GENERAL PROVISIONS CONCERNING DIRECTION POWERS UNDER SECTIONS 18A AND 19
(Repealed by No 63 of 2016)
SECTION 19B
19B
MINISTER MAY REQUIRE PROVISION OF ADVICE
(Repealed by No 63 of 2016)
SECTION 20
20
DIRECTIONS FOR POLICIES AND PRACTICES OF BOARD
(Repealed by No 63 of 2016)
SECTION 20A
MINISTER MAY GIVE ADVICE TO BOARD OR COMMITTEE
20A(1)
The Minister may give advice to the Board, or to a committee, on any matter that relates, directly or indirectly, to the performance of any of the Board's functions.
20A(2)
The advice is to be in writing, delivered to the Chairperson of the Board or of the committee, as the case may be, and is to be expressed to be given under this section.
20A(3)
The advice must not relate to a particular person.
20A(4)
The Board or committee must consider the advice at its first meeting after the advice is received, but the Board or committee is not required to act in accordance with the advice.
SECTION 21 DELEGATION BY BOARD 21(1)
The Board may, by resolution, delegate any or all of its functions and powers to any of the following: (a) the Chairperson; (b) the Deputy Chairperson; (c) a member of the Board; (d) a committee; (e) a member of the staff assisting the Board.
21(2)
(Repealed by No 63 of 2016)
21(3)
A delegation of a function or power under this section: (a) may be revoked by a resolution of the Board (whether or not constituted by the persons constituting the Board at the time the function or power was delegated); and (b) (Repealed by No 164 of 2007) (c) continues in force notwithstanding a change in the membership of the Board.
21(4)
Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Board were a person.
21(5)
A certificate signed by the Chairperson stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
21(6)
A document purporting to be a certificate mentioned in subsection (5) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
21(7)
(Repealed by No 164 of 2007)
21(8)
(Repealed by No 164 of 2007)
SECTION 22
COMMITTEES
22(1)
The Minister may, by notifiable instrument, appoint such committees as the Minister considers necessary for providing advice to the Board on matters relating to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002.
22(1A)
In addition to providing advice to the Board as mentioned in subsection (1), a committee may exercise any functions or powers delegated to it by the Board under subsection 21(1).
22(2)
A committee shall consist of not more than 7 members (who may include a member or members of the Board) who shall be appointed by the Minister in accordance with subsections (2A), (2B), (2BA) and (2C) and shall hold office, for the periods for which they are appointed, during the pleasure of the Minister.
22(2A)
A member of a committee is to be appointed for a particular period, not exceeding 3 years, determined by the Minister.
22(2B)
A person must not be appointed as a member of a committee if the person has, at any time before that appointment, served 2 consecutive terms as a member of the committee (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
22(2BA)
Despite subsection (2B), a person may be appointed as a member of a committee for no more than 2 further consecutive terms if:
(a) during the previous 2 consecutive terms the person was not the Chairperson of the committee; and
(b) the person will be the Chairperson of the committee in those further terms.
22(2C)
Before the Minister appoints a person as a member of a committee for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the committee members are appointed do not all end at the same time.
22(3)
The Minister may appoint a member of a committee to be the Chairperson of the committee.
22(4)
Where the Minister notifies a committee that he or she does not propose to appoint a Chairperson of the committee under subsection (3), the committee shall elect a member of the committee to be the Chairperson of the committee.
22(5)
A member of a committee shall hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
22(6)
A member of a committee may resign by writing signed by the member and delivered to the Minister.
22(7)
The Board may refer to a committee for advice any matter relating to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002.
22(8)
A committee shall cause minutes of its meetings to be kept.
22(9)
(Repealed by No 93 of 2011)
SECTION 22A
DELEGATION BY COMMITTEE
22A(1)
A committee may, by resolution, delegate to a member of the committee or to a member of the staff assisting the committee all or any of its functions and powers (including a function or power delegated to the committee by the Board under subsection 21(1), despite paragraph 34AB(1)(b) of the Acts Interpretation Act 1901).
22A(1A)
(Repealed by No 63 of 2016)
22A(2)
A delegation of a function or power under this section: (a) may be revoked by a resolution of the committee (whether or not constituted by the persons constituting the committee when the function or power was delegated); and (b) continues in force notwithstanding a change in the membership of the committee.
22A(3)
A certificate signed by the Chairperson of a committee stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
22A(4)
A document purporting to be a certificate mentioned in subsection (3) shall, unless the contrary is established, be taken to be such a certificate and to have been duly given.
22A(5)
(Repealed by No 164 of 2007)
22A(6)
(Repealed by No 164 of 2007)
SECTION 23
DIRECTIONS OF BOARD TO COMMITTEES
23(1)
The Board may, by notifiable instrument, give directions with respect to:
(a) the matters to be taken into account by a committee in giving advice in relation to a matter or matters; or
(b) the practices to be followed by the committee in the performance of its functions.
23(2)
Directions under subsection (1) shall be in writing and shall be given to the Chairperson of the committee to which the directions are given.
23(3)
The Board shall not give directions to a committee under subsection (1) unless and until the Board:
(a) has given to the Chairperson of the committee:
(b) has considered any comments given in response to the invitation.
23(4)
(Repealed by No 63 of 2016)
SECTION 24 DISCLOSURE OF INTERESTS BY MEMBERS OF COMMITTEES 24(1)
A member of a committee who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the committee shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the committee.
24(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the committee and a member of a committee shall not, unless the Minister or the committee otherwise determines:
(a) be present during any deliberation of the committee with respect to that matter; or
(b) take part in any decision of the committee with respect to that matter.
24(3)
For the purpose of the making of a determination by the committee under subsection (2) in relation to a member of a committee who has made a disclosure under subsection (1), a member of a committee who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the committee for the purpose of making the determination; or
(b) take part in the making by the committee of the determination.
SECTION 25 STAFF, CONSULTANTS ETC 25(1)
The staff required to assist the Board and committees in the performance of their functions shall be persons engaged under the Public Service Act 1999.
25(2)
The Board and committees may also be assisted by consultants, or other persons, engaged by the Commonwealth.
PART III - FUNCTIONS RELATING TO THE R&D TAX OFFSET
Division 1 - Introduction
SECTION 26
26
OBJECTS
The objects of this Part are:
(a) to provide integrity for the working out of tax offsets under Division 355 (about R&D) of the Income Tax Assessment Act 1997; and
(b) to increase certainty through findings about matters relevant to the working out of those tax offsets; and
(c) to improve access for small and medium R&D entities to quality research services by maintaining a register of research service providers.(a) the Board registering entities seeking these tax offsets; and
(b) the Board conducting compliance checks on those entities.
SECTION 26A
26A
SIMPLIFIED OUTLINE
• The Board may, on application by an R&D entity, register the R&D entity for R&D activities. This registration is needed before the R&D entity can be entitled to a tax offset (an
R&D tax offset
) under Division 355 of the Income Tax Assessment Act 1997 for the R&D activities.
• The R&D entity can seek an advance finding to get early notice about whether an activity is considered to be an R&D activity.
• The R&D entity can seek a finding that an activity cannot be conducted in Australia. The finding is needed before expenditure incurred on the activity can count towards an R&D tax offset.
• The Board may register entities as research service providers capable of providing research services to R&D entities.
• Internal and external review can be sought for certain decisions under this Part.
• The Board may make general determinations about how it will exercise its powers, and perform its functions and duties, under this Part. The Board must act in accordance with such a determination.
Division 2 - Registering for the R&D tax offset
Subdivision A - Introduction
SECTION 27
27
SIMPLIFIED OUTLINE
• The Board may register an R&D entity for R&D activities conducted during an income year.
• The Board may make findings about the nature of an R&D entity's activities both before and after registration.
• These findings bind the Commissioner for the purposes of any entitlement of the R&D entity to atax offset under Division 355 of the Income Tax Assessment Act 1997 for the activities.
• The Board will register an R&D entity's activities consistently with any findings made about the entity's application. Any findings made about these activities after registration will, if necessary, automatically vary the entity's registration.
• Registrations can also be varied and revoked.
Subdivision B - Registering R&D entities for R&D activities
SECTION 27A
REGISTERING R&D ENTITIES FOR R&D ACTIVITIES
27A(1)
The Board must, on application by an R&D entity, decide whether to register or refuse to register the entity for either or both of the following for an income year:
(a) one or more specified activities as core R&D activities conducted during the income year;
(b) one or more specified activities as supporting R&D activities conducted during the income year;
27A(2)
If the Board decides under subsection (1) to register the R&D entity, the Board must do so consistently with:
(a) any findings already in force under subsection 27B(1) in relation to the application; and
(b) any findings already in force under subsection 28A(1) (advance findings about the nature of activities) in relation to the R&D entity.
27A(3)
For each activity registered under subsection (1) as a supporting R&D activity for an R&D entity for an income year, the registration is to also specify:
(a) one or more activities as the corresponding core R&D activities; and
(b) if any of those activities specified as a core R&D activity is not registered under paragraph (1)(a) for the R&D entity for the income year - each income year for which that core R&D activity:
SECTION 27B
FINDINGS ABOUT APPLICATIONS FOR REGISTRATION
27B(1)
The Board may make one or more findings to the following effect when considering an R&D entity's application for the purposes of subsection 27A(1):
(a) that all or part of an activity mentioned in the application was a core R&D activity conducted during the income year;
(b) that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (a);
(c) that all or part of an activity mentioned in the application was a supporting R&D activity conducted:
(d) that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (c).
27B(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's application, the Board may specify in the finding the times to which the finding relates.
27B(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
SECTION 27C
NOTICE OF DECISION ABOUT REGISTRATION
27C(1)
The Board must notify an applicant in writing of the Board's decision under subsection 27A(1) about the application.
27C(2)
The notice must include a certificate for each finding (if any) made under subsection 27B(1) for the application. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) the activity affected by the finding; and
(d) the matters (if any) specified in regulations made for the purposes of this paragraph.
27C(3)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
27C(4)
A failure to comply with this section does not affect the validity of the decision or finding.
Subdivision C - Applying to register R&D activities
SECTION 27D
27D
APPLYING TO REGISTER R&D ACTIVITIES
An application to register activities under section 27A for an income year must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section; and
(c) made within:
SECTION 27E
BOARD MAY REQUEST FURTHER INFORMATION
27E(1)
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
27E(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
27E(3)
The request may be for the information or kinds of information to be given in the approved form.
27E(4)
Subsections (2) and (3) do not limit subsection (1).
Subdivision D - Examining registrations
SECTION 27F
EXAMINING A REGISTRATION
27F(1)
The Board may conduct one or more examinations of all or part of an R&D entity's registration under section 27A for an income year for the purposes of making one or more findings under subsection 27J(1).
27F(2)
The Board may examine an R&D entity's registration on its own initiative.
27F(3)
The Board must examine an R&D entity's registration if:
(a) requested by the Commissioner; or
(b) the R&D entity has applied for one or more findings under subsection 27J(1) about the registration.
27F(4)
If the R&D entity applies for a finding under subsection 27J(1) about the registration, the Board must:
(a) make one or more findings under subsection 27J(1) about the registration; or
(b) if justified in accordance with the decision-making principles - refuse to make a finding under subsection 27J(1) about the registration.
SECTION 27G
27G
APPLYING FOR FINDINGS
An application for one or more findings under subsection 27J(1) must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
SECTION 27H
BOARD MAY REQUEST INFORMATION DURING AN EXAMINATION
27H(1)
When examining an R&D entity's registration, the Board may request the entity in writing to give specified information, or specified kinds of information, to the Board about the entity's registration.
27H(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
27H(3)
The request may be for the information or kinds of information to be given in the approved form.
27H(4)
Subsections (2) and (3) do not limit subsection (1).
SECTION 27J
FINDINGS ABOUT A REGISTRATION
27J(1)
The Board may make one or more findings to the following effect about an R&D entity's registration under section 27A for an income year (the registration year ):
(a) that all or part of a registered activity was a core R&D activity conducted during the registration year;
(b) that all or part of a registered activity was not an activity of a kind covered by paragraph (a);
(c) that all or part of a registered activity was a supporting R&D activity conducted during the registration year and in relation to:
(d) that all or part of a registered activity was not an activity of a kind covered by paragraph (c).
27J(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's registration, the Board may specify in the finding the times to which the finding relates.
27J(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
SECTION 27K
NOTICE OF FINDINGS OR OF DECISIONS REFUSING TO MAKE FINDINGS
27K(1)
The Board must notify the R&D entity, and the Commissioner, in writing of any findings under subsection 27J(1) about the entity's registration under section 27A.
27K(2)
The notice must include a certificate for each finding. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) the registered activity affected by the finding; and
(d) the effect of the finding on the entity's registration; and
(e) the matters (if any) specified in regulations made for the purposes of this paragraph.
27K(3)
The Board must notify the R&D entity in writing of any decision under paragraph 27F(4)(b) refusing to make a finding under subsection 27J(1) in response to an application under section 27G by the R&D entity.
27K(4)
A failure to comply with this section does not affect the validity of a finding or decision.
SECTION 27L
AUTOMATIC VARIATIONS SO REGISTRATION IS CONSISTENT WITH FINDINGS
27L(1)
If an R&D entity is registered under section 27A for an income year, then while a finding is in force:
(a) under subsection 27B(1) in relation to the application for the registration; or
(b) under subsection 27J(1) in relation to the registration;
27L(2)
If:
(a) a finding under subsection 28A(1) (advance findings about the nature of activities) comes into force for an R&D entity about an activity conducted during an income year; and
(b) the R&D entity is later registered under section 27A for the activity for the income year;
27L(3)
This section has effect for the purposes of this Act and the Income Tax Assessment Act 1997.
SECTION 27M
VARYING REGISTRATIONS ON APPLICATION
27M(1)
The Board may, by notice in writing given to an R&D entity, vary the entity's registration under section 27A for an income year if:
(a) the entity applies for the variation; and
(b) the variation is consistent with the Board's findings (if any) in force under this Part in relation to the R&D entity; and
(c) making the variation is justified in accordance with the decision-making principles.
27M(2)
An application for a variation must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
27M(3)
Section 27E applies to an application under this section in a way corresponding to the way that section applies to an application under section 27D.
27M(4)
For the purposes of this Act and the Income Tax Assessment Act 1997, the effect of a variation is that the entity's registration under section 27A for the income year is taken always to have existed as varied.
SECTION 27N
REVOKING REGISTRATIONS
27N(1)
The Board may, by notice in writing given to an entity, revoke the entity's registration under section 27A for an income year if the Board is satisfiedthat the entity was not an R&D entity at any time when an activity covered by the registration was conducted during the income year.
27N(2)
The Board may, by notice in writing given to an R&D entity, revoke the entity's registration under section 27A for an income year if the entity requests the Board to do so.
27N(3)
A request for a revocation under subsection (2) must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
27N(4)
For the purposes of this Act, and the Income Tax Assessment Act 1997, the effect of a revocation under this section is that the entity is taken never to have been registered under section 27A for the income year.
27N(5)
The Board must notify the Commissioner of a revocation under this section.
Division 3 - Other findings
Subdivision A - Introduction
SECTION 28
28
SIMPLIFIED OUTLINE
• An R&D entity can seek a finding (an
advance finding
) about whether an activity is an R&D activity.
• An advance finding binds the Commissioner for the purpose of working out tax offsets (
R&D tax offsets
) under Division 355 of the Income Tax Assessment Act 1997.
• An R&D entity can seek a finding that an activity cannot be conducted in Australia.
• An R&D tax offset will only be available for expenditure incurred on an activity conducted outside Australia if a finding that the activity cannot be conducted in Australia has come into force.
• The Board may also make a finding about whether particular technology is core technology for R&D activities.
• An effect of a finding that the technology is core technology for the R&D activities is that an R&D tax offset will not be available for expenditure incurred in acquiring, or in acquiring the rights to use, the technology for the R&D activities.
Subdivision B - Advance findings about the nature of activities
SECTION 28A
ADVANCE FINDINGS ABOUT THE NATURE OF ACTIVITIES
28A(1)
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a) find that all or part of the activity is a core R&D activity;
(b) find that all or part of the activity is a supporting R&D activity in relation to one or more specified core R&D activities for which the entity has been or could be registered under section 27A for an income year;
(c) make a finding to the effect that all or part of the activity is neither:
(d) if justified inaccordance with the decision-making principles - refuse to make a finding about all or part of the activity.
28A(2)
The Board must not make a finding under subsection (1) about an activity unless the Board is satisfied that the activity:
(a) is being conducted, or has been completed, during the income year in which the application is made; or
(b) is yet to be conducted, but that it is reasonable to expect that the activity will be conducted in any or all of the following income years:
28A(3)
If the Board makes a finding under subsection (1) about an activity that is being conducted, or has been completed, during the income year in which the application is made, the Board may specify in the finding the times to which the finding relates.
28A(4)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
SECTION 28B
APPLICATIONS MADE ON BEHALF OF R&D ENTITIES
28B(1)
An application for a finding under subsection 28A(1) may be made on behalf of an R&D entity by an entity who:
(a) is specified in regulations made for the purposes of this subsection; and
(b) is acting with the R&D entity's written consent.
28B(2)
If:
(a) an entity could, under subsection (1), make an application on behalf of more than one R&D entity for the same findingfor the same activity; and
(b) the entity applies (the joint application ) under subsection 28G(2) for the finding on behalf of those R&D entities;
Subdivision C - Findings about activities to be conducted outside Australia
SECTION 28C
FINDINGS ABOUT ACTIVITIES TO BE CONDUCTED OUTSIDE AUSTRALIA
28C(1)
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a) find that all or part of the activity is an activity (the overseas activity ) that meets the conditions in section 28D;
(b) find that all or part of the activity is not an activity that meets the conditions in section 28D;
(c) if justified in accordance with the decision-making principles - refuse to make a finding about all or part of the activity.
28C(2)
For the purposes of this Act and the Income Tax Assessment Act 1997, a finding under subsection (1) comes into force at the start of the income year in which the application for the finding is made.
28C(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
SECTION 28D
CONDITIONS FOR A FINDING THAT AN OVERSEAS ACTIVITY CANNOT BE CONDUCTED IN AUSTRALIA ETC.
Must be an R&D activity
28D(1)
The first condition is that the overseas activity is covered by a finding under paragraph 28A(1)(a) or (b) (findings that activities are R&D activities).
Must have significant scientific link to Australian core activities
28D(2)
The second condition is that the overseas activity has a significant scientific link to one or more core R&D activities (the Australian core activities ):
(a) that are conducted or to be conducted solely within Australia; and
(b) that:
28D(3)
The overseas activity has a significant scientific link to the Australian core activities if:
(a) the Australian core activities cannot be completed without the overseas activity being conducted; and
(b) the conditions (if any) specified in regulations made for the purposes of this subsection are met.
Must be unable to be conducted within Australia etc.
28D(4)
The third condition is that the overseas activity cannot be conducted solely in Australia because:
(a) conducting it requires access to a facility, expertise or equipment not available in Australia; or
(b) conducting it in Australia would contravene the Biosecurity Act 2015 or a law relating to quarantine; or
(c) conducting it requires access to a population (of living things) not available in Australia; or
(d) conducting it requires access to a geographical or geological feature not available in Australia; or
(e) it meets a condition (if any) specified in regulations made for the purposes of this subsection.
Expenditure must be less than that incurred on Australian core activities
28D(5)
The fourth condition is that the total actual and reasonably anticipated expenditure of any entity in all income years on:
(a) the overseas activity; and
(b) each other activity (if any) conducted wholly or partly outside Australia that has a significant scientific link to the Australian core activities;
(c) the Australian core activities; and
(d) activities conducted solely within Australia that are supporting R&D activities in relation to the Australian core activities.
Subdivision D - Findings about whether technology is core technology
SECTION 28E
FINDINGS ABOUT WHETHER TECHNOLOGY IS CORE TECHNOLOGY
28E(1)
If an R&D entity has acquired, or has acquired the right to use, particular technology wholly or partly for the purposes of one or more R&D activities conducted, or to be conducted, during one or more income years, the Board may:
(a) find that the technology is core technology for the R&D activities; or
(b) find that the technology is not core technology for the R&D activities; or
(c) if justified in accordance with the decision-making principles - refuse to make a finding about the technology and the R&D activities.
28E(2)
Particular technology is core technology for one or more R&D activities if:
(a) a purpose of the R&D activities was or is:
(b) the R&D activities were or are an extension, continuation, development or completion of the activities that produced that technology.
28E(3)
The Board must make a finding under paragraph (1)(a) or (b) if requested by the Commissioner to make a finding under this section.
28E(4)
In addition to subsection (3), the Board:
(a) may make a finding under subsection (1) on its own initiative; and
(b) must make a decision under subsection (1) if the R&D entity applies for a finding under this section.
28E(5)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
Subdivision E - Matters relevant to findings under this Division
SECTION 28F
NOTICE OF DECISION ABOUT FINDINGS
28F(1)
The Board must notify an applicant in writing of each of the Board's decisions under subsection 28A(1) or 28C(1) about the application.
28F(2)
The Board must notify an R&D entity in writing of each of the Board's decisions under subsection 28E(1) that relates to the R&D entity.
28F(3)
A notice under subsection (1) or (2) must include a certificate for each finding (if any) to which the decision relates. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) a description of the activity affected by the finding; and
(d) for a finding under subsection 28E(1) - a description of the technology affected by the finding; and
(e) the matters (if any) specified in regulations made for the purposes of this paragraph.
28F(4)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
28F(5)
A failure to comply with this section does not affect the validity of a decision or finding.
SECTION 28G
APPLYING FOR FINDINGS
Applications for findings
28G(1)
An application for one or more findings under this Division must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this subsection.
Joint applications for identical advance findings
28G(2)
An application for identical findings under subsection 28A(1) on behalf of several R&D entities must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this subsection.
SECTION 28H
BOARD MAY REQUEST FURTHER INFORMATION
28H(1)
The Board may request in writing:
(a) for an application taken to be made by an R&D entity because of section 28B - the entity that acted on behalf of the R&D entity in relation to the application; or
(b) otherwise - the applicant;
28H(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
28H(3)
The request may be for the information or kinds of information to be given in the approved form:
28H(4)
Subsections (2) and (3) do not limit subsection (1).
Division 4 - Research service providers
Subdivision A - Introduction
SECTION 29
29
SIMPLIFIED OUTLINE
• The Board may register entities as research service providers capable of providing research services to R&D entities.
• Near the end of each financial year, registered research service providers will be asked if they want their registrations to continue for the next financial year.
• Registrations can be varied and revoked.
• Details of registrations are set out in a register available on the internet.
Subdivision B - Registering research service providers
SECTION 29A
REGISTERING RESEARCH SERVICE PROVIDERS
29A(1)
The Board must, on application by an entity, decide whether to register or refuse to register the entity as a research service provider capable of providing services in one or more specified research fields to R&D entities registered under section 27A.
29A(2)
The Board must not register the entity under subsection (1) unless the Board is satisfied that the entity meets the criteria specified in regulations made for the purposes of this subsection.
29A(3)
A registration under this section is subject to the conditions (if any) specified in regulations made for the purposes of this subsection.
Subdivision C - Applying for registration
SECTION 29B
29B
APPLYING FOR REGISTRATION
An application to be registered under section 29A must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
SECTION 29C
BOARD MAY REQUEST FURTHER INFORMATION ABOUT AN APPLICATION
29C(1)
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
29C(2)
The request may be for the information or kinds of information to be given within 30 days after the request was made.
29C(3)
The request may be for the information or kinds of information to be given in the approved form.
29C(4)
Subsections (2) and (3) do not limit subsection (1).
29C(5)
The Board may refuse to consider the application if the applicant fails to give the information within:
(a) the 30 days referred to in subsection (2); or
(b) a further period allowed by the Board in accordance with the decision-making principles.
SECTION 29D
BOARD MAY NEED TO MAKE INQUIRIES ABOUT AN APPLICATION
29D(1)
The Board may notify the applicant in writing that the Board:
(a) needs to make inquiries in order to determine whether the applicant meets the criteria for registration referred to in subsection 29A(2); and
(b) requires the applicant to pay the Board a specified amount towards the cost of those inquiries.
29D(2)
The Board may refuse to consider the application until the applicant pays the Board that amount.
29D(3)
An amount specified in a notice under subsection (1) must not exceed the higher of:
(a) $1,000; and
(b) the amount (if any) specified in regulations made for the purposes of this subsection;
Subdivision D - Varying or revoking registrations
SECTION 29E
DURATION OF REGISTRATIONS
29E(1)
At least 2 months before the end of each financial year, the Board must give each research service provider a notice:
(a) asking the provider if it wishes to continue to be registered under section 29A; and
(b) attaching an approved form to be completed by the provider and returned to the Board if the provider wishes to continue to be registered.
29E(2)
The Board may, by notice in writing given to the provider, revoke the provider's registration under section 29A if the provider does not return the completed form within:
(a) 30 days after the notice under subsection (1) was given; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
29E(3)
For the purposes of this Act and the Income Tax Assessment Act 1997, the revocation takes effect at the end of that financial year.
SECTION 29F
VARYING REGISTRATIONS - ON APPLICATION
29F(1)
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section 29A if:
(a) the provider applies for the variation; and
(b) the Board is satisfied that the provider would still meet the criteria for registration referred to in subsection 29A(2) were the application to be successful.
29F(2)
An application for a variation must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
29F(3)
Sections 29C and 29D apply to applications under this section in a way corresponding to the way those sections apply to applications under section 29B.
SECTION 29G
VARYING REGISTRATIONS - OTHERWISE THAN ON APPLICATION
29G(1)
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section 29A so that the provider ceases to be registered to provide services in one or more specified research fields.
29G(2)
The Board may do so if the Board is satisfied that the provider does not meet the criteria for registration referred to in subsection 29A(2) in so far as those criteria relate to those research fields.
SECTION 29H
REVOKING REGISTRATIONS
29H(1)
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section 29A if the Board is satisfied:
(a) that the provider has ceased to meet the criteria for registration referred to in subsection 29A(2); or
(b) that the provider has breached a condition, referred to in subsection 29A(3), of the registration.
29H(2)
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section 29A if the provider requests the Board to do so.
29H(3)
A request for a revocation under subsection (2) must be in the approved form.
Subdivision E - Register of research service providers
SECTION 29J
REGISTER OF RESEARCH SERVICE PROVIDERS
29J(1)
The Board is to make available for inspection on the internet a register that includes details of:
(a) registrations in force under this Division; and
(b) registrations that have been revoked under this Division during the current financial year or the previous financial year.
29J(2)
The register is not a legislative instrument.
Division 5 - Review
SECTION 30
30
SIMPLIFIED OUTLINE
• An entity affected by a reviewable decision may ask the Board to conduct an internal review of that decision.
• The entity, or another entity affected by the resulting internal review decision, may ask the Administrative Review Tribunal to review the internal review decision.
SECTION 30A
30A
REVIEWABLE DECISIONS
Each of the following decisions of the Board is a reviewable decision .
SECTION 30B
NOTICE OF REVIEWABLE DECISION AND INTERNAL REVIEW RIGHTS
30B(1)
When making a reviewable decision relating to an entity, the Board must give written notice to the entity of the following things:
(a) the making of the decision;
(b) the reasons for the decision;
(c) the entity's right to have the decision reviewed under this Division.
30B(2)
If written notice of any of these things is given to the entity under another provision of this Part, notice of the thing does not have to be given twice.
30B(3)
A failure to comply with this section does not affect the validity of the decision.
SECTION 30C
APPLICATIONS FOR INTERNAL REVIEW OF REVIEWABLE DECISIONS
Applications by affected entities
30C(1)
An application for review of a reviewable decision may be made by or on behalf of any entity whose interests are affected by the reviewable decision.
30C(2)
An application under subsection (1) must be in the approved form.
30C(3)
An application under subsection (1) for review of a reviewable decision must be made within:
(a) 28 days after the entity to which the decision relates is notified of the decision under this Part; or
(b) such further period as the Board allows in accordance with the decision-making principles.
Applications by Commissioner
30C(4)
The Commissioner may, at any time, apply to the Board for review of a reviewable decision.
SECTION 30D
INTERNAL REVIEW OF REVIEWABLE DECISIONS
30D(1)
After receiving an application for review of a reviewable decision, the Board must review the decision.
Making internal review decisions
30D(2)
After reviewing the reviewable decision, the Board must make a decision (an internal review decision ): (a) confirming the reviewable decision; or (b) varying the reviewable decision; or (c) setting aside the reviewable decision and substituting a new decision.
Deemed internal review decisions
30D(3)
If the Board does not make a decision under subsection (2) before the end of the period of 90 days after the day on which the Board received the application for review, the Board is taken, at the end of that period, to have made a decision (also an internal review decision ) confirming the reviewable decision.
30D(4)
However, an internal review decision (the deemed decision ) is taken not to have been made under subsection (3) if: (a) after the end of the period referred to in that subsection, the Board makes a decision under subsection (2) about the applicable reviewable decision; and (b) an application has yet to be made under section 30E to the Administrative Review Tribunal for review of the deemed decision.
Matters relevant to all internal review decisions
30D(5)
For the purposes of this Act and the Income Tax Assessment Act 1997, an internal review decision takes effect on the day on which the reviewable decision took effect.
30D(6)
The Board must notify the Commissioner in writing of: (a) the making of an internal review decision; and (b) the reasons for that decision.
SECTION 30E
EXTERNAL REVIEW BY ADMINISTRATIVE REVIEW TRIBUNAL OF INTERNAL REVIEW DECISIONS
30E(1)
Application may be made to the Administrative Review Tribunal for review of an internal review decision of the Board.
30E(2)
Subsections 108(2) and (4) of the Administrative Review Tribunal Act 2024 have effect for the purposes of this Act and the Income Tax Assessment Act 1997 for: (a) an internal review decision as varied by the Tribunal under section 105 of the Administrative Review Tribunal Act 2024; or (b) a decision made by the Tribunal under that section in substitution for an internal review decision.
30E(3)
If an internal review decision is taken to be made under subsection 30D(3), then, despite section 18 (when to apply - general rule) of the Administrative Review Tribunal Act 2024, an application to the Administrative Review Tribunal must be made within the period: (a) beginning on the day on which the decision is taken to be made; and (b) ending 28 days after the day on which the decision is taken to be made.
30E(4)
(Repealed by No 39 of 2024)
Division 6 - Consolidated groups and MEC groups
SECTION 31
REGISTRATIONS AND FINDINGS NOT EFFECTIVE FOR SUBSIDIARY MEMBERS FOR GROUP R&D ACTIVITIES
31(1)
An R&D entity's registration under section 27A for an income year has no effect to the extent that the registration is for an activity conducted during a period that the R&D entity is a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity.
31(2)
If:
(a) a finding is made under this Part on application by an R&D entity that is a subsidiary member of a consolidated group or MEC group; and
(b) the head company of the group is also an R&D entity;
If a finding (the actual finding ) under this Part:
(a) is in force for an R&D entity immediately before the time (the joining time ) it becomes a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity; and
(b) is for an activity to be conducted wholly or partly after the joining time;
31A(2)
The deemed finding ceases to be in force if the R&D entity ceases to be a subsidiary member of the group.
31A(3)
The result of any review (see Division 5) of an actual finding is taken to apply in a corresponding way to the deemed finding.
31A(4)
Neither section 28F (notice of decision about findings) nor Division 5 (review) applies to the deemed finding.
SECTION 31B
WHAT HAPPENS TO FINDINGS IF R&D ENTITY LEAVES A GROUP
31B(1)
The consequences in subsection (2) apply if a finding (the group finding ) under this Part: (a) is for an R&D entity that is the head company of a consolidated group or MEC group; and (b) is in force immediately before the time (the leaving time ) another R&D entity ceases to be a subsidiary member of the group; and (c) is for an activity to be conducted by or for the other R&D entity wholly or partly after the leaving time; and (d) is not a deemed finding.
31B(2)
The consequences are as follows: (a) a corresponding finding (the continuing finding ) in the same terms is taken to come into force at the leaving time for the other R&D entity and the activity; (b) everything that happened under this Part before the leaving time in relation to the group finding is taken to have happened in relation to the continuing finding; (c) the group finding ceases to be in force at the leaving time.
Division 6A - Determinations about Board's powers, functions and duties under this Part
SECTION 31C
31C
SIMPLIFIED OUTLINE
• The Board may make general determinations about the circumstances or way in which it will exercise its powers, or perform its functions or duties, under this Part.
• The Board must act in accordance with such a determination.
• A determination cannot override the decision-making principles.
SECTION 31D
BOARD MAY MAKE A DETERMINATION ABOUT ITS POWERS, FUNCTIONS AND DUTIES
31D(1)
On its own initiative, the Board may, by notifiable instrument, make a determination about the circumstances or way in which the Board will exercise any of its powers, or perform any of its functions or duties, under this Part (except this Division).
31D(2)
The determination must not relate to the exercise of powers, or the performance of functions or duties, in a particular case or in relation to a particular entity.
31D(3)
The Board must exercise its powers, and perform its functions and duties, under this Part (except section 30D and this Division) in accordance with the determination.
31D(4)
The determination has no effect to the extent of any inconsistency with this Act, the regulations or the decision-making principles.
SECTION 31E
WHEN BOARD MUST AMEND OR REVOKE A DETERMINATION
31E(1)
This section applies to a determination made under section 31D if: (a) as a result of reviewing under section 30D a reviewable decision that was made in accordance with the determination because of section 31D, the Board is satisfied that the determination is incorrect; or (b) the determination is inconsistent with:
31E(2)
The Board must, by notifiable instrument, revoke the determination or amend it so it is no longer incorrect or inconsistent.
31E(3)
This section does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to the power to make a determination under section 31D of this Act.
Division 7 - Other matters
SECTION 32
APPROVED FORMS
32(1)
This section applies if a provision of this Part requires a thing to be in the approved form.
32(2)
To be in the approved form for the provision, the thing must:
(a) be in writing in a form approved by the Board; and
(b) include the information required by the form; and
(c) includes any other material (including documents) required by the form.
32(3)
The Board may approve, in writing, a form for the purposes of paragraph (2)(a). When doing so, the Board must ensure the form requires the production of information, or other material (including documents), specified in regulations made for the purposes of this subsection.
SECTION 32A
32A
DECISION-MAKING PRINCIPLES
The Minister may, by legislative instrument, make principles (the decision-making principles ) that the Board must comply with when deciding the following:
(a) whether to allow a thing to be given under this Part within a further period than that specified in this Part;
(b) whether refusing to make a finding sought under this Part is justified;
(c) whether making a variation sought under section 27M is justified.
SECTION 32B
GENERAL RULES ABOUT FINDINGS UNDER THIS PART
32B(1)
A finding made under this Part in relation to an R&D entity has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity.
32B(2)
Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to the power to make a finding under this Part.
SECTION 32C
ALTERNATIVE CONSTITUTIONAL BASIS
32C(1)
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a) subsection (2) had not been enacted; and
(b) each reference in this Part to an R&D entity were, by express provision, confined to an R&D entity that:
32C(2)
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a) subsection (1) had not been enacted; and
(b) this Part, by express provision, confined applications, registrations, findings and decisions under this Part to be in relation to activities, or parts of activities, conducted or to be conducted:
PART IIIA - FUNCTIONS OF BOARD IN RELATION TO INCOME TAX CONCESSIONS
PART IV - PROGRAMS RELATING TO INDUSTRY, INNOVATION, SCIENCE AND RESEARCH
SECTION 33
INDUSTRY, INNOVATION, SCIENCE AND RESEARCH PROGRAMS
33(1)
The Minister may, by legislative instrument, prescribe one or more programs in relation to industry, innovation, science or research, including in relation to the expenditure of Commonwealth money under such programs.
33(2)
A program may only be prescribed under subsection (1): (a) to the extent that it is with respect to one or more legislative powers of the Parliament; and (b) if it is not a program to subsidise the extraction of coal or natural gas.
33(3)
The legislative instrument must specify the legislative power or powers of the Parliament in respect of which the instrument is made.
33(4)
The legislative instrument may make provision in relation to: (a) a description of the program; or (b) the purpose of the program; or (c) eligibility criteria relating to the program; or (d) a process for making applications in relation to the program; or (e) whether application fees are payable in relation to the program.
33(5)
Subsections (3) and (4) do not limit subsection (1).
33(6)
The Minister may, by writing, delegate to another Minister, the Minister's power under subsection (1).
33(7)
In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Minister.
SECTION 34
ARRANGEMENTS RELATING TO INDUSTRY, INNOVATION, SCIENCE AND RESEARCH PROGRAMS
34(1)
The Commonwealth may make, vary or administer an arrangement:
(a) in relation to the carrying out of activities by a person under a program prescribed by legislative instrument under subsection 33(1); and
(b) for money to be payable by the Commonwealth to the person for that purpose.
34(2)
The power conferred on the Commonwealth by subsection (1) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate Commonwealth entity.
34(3)
In this section:
(a) vary in accordance with the terms or conditions of the arrangement; or
(b) vary with the consent of the non-Commonwealth party or parties to the arrangement.
SECTION 35
TERMS AND CONDITIONS RELATING TO INDUSTRY, INNOVATION, SCIENCE AND RESEARCH PROGRAM ARRANGEMENTS
35(1)
If a party to an arrangement under section 34 is a State or Territory:
(a) the terms and conditions on which money may be payable by the Commonwealth under the arrangement must be set out in a written agreement between the Commonwealth and the State or Territory; and
(b) the State or Territory must comply with the terms and conditions.
35(2)
If a party to an arrangement under section 34 is a corporation to which paragraph 51(xx) of the Constitution applies:
(a) the terms and conditions on which money may be payable by the Commonwealth under the arrangement must be set out in a written agreement between the Commonwealth and the corporation; and
(b) the corporation must comply with the terms and conditions.
35(3)
Without limiting subsection (2), the terms and conditions must provide for the circumstances in which the corporation must repay amounts to the Commonwealth.
35(4)
An agreement under subsection (1) or (2) may be entered into on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate Commonwealth entity.
35(5)
This section does not, by implication, prevent an arrangement under section 34 between the Commonwealth and a person other than a State or Territory or a corporation to which paragraph 51(xx) of the Constitution applies from being made subject to terms and conditions.
SECTION 36
MINISTER OR ACCOUNTABLE AUTHORITY MAY DELEGATE POWERS IN RELATION TO ARRANGEMENTS
Delegation by a Minister
36(1)
A Minister may, by writing, delegate any or all of his or her powers under section 34 or 35 to an official of any non-corporate Commonwealth entity.
36(2)
In exercising powers under a delegation, the delegate must comply with any directions of the Minister concerned.
Delegation by an accountable authority
36(3)
An accountable authority of a non-corporate Commonwealth entity may, by writing, delegate any or all of his or her powers under section 34 or 35 to an official of any non-corporate Commonwealth entity.
36(4)
In exercising powers under a delegation, the delegate must comply with any directions of the accountable authority concerned.
SECTION 37
37
RELATIONSHIP OF THIS PART WITH THE PUBLIC GOVERNANCE, PERFORMANCE AND ACCOUNTABILITY ACT 2013
Section 23 of the Public Governance, Performance and Accountability Act 2013 (which deals with the power of accountable authorities in relation to arrangements and commitments) does not authorise the accountable authority of a non-corporate Commonwealth entity to exercise, on behalf of the Commonwealth, a power conferred on the Commonwealth by section 33 of this Act.
37(2)
(Repealed by No 27 of 2024)
SECTION 38 38 EXECUTIVE POWER OF THE COMMONWEALTH
This Part does not, by implication, limit the executive power of the Commonwealth.
PART V - MISCELLANEOUS
SECTION 44
OFFENCES
44(1)
(Repealed by No 137 of 2000)
44(2)
(Repealed by No 137 of 2000)
44(3)
(Repealed by No 137 of 2000)
44(4)
(Repealed by No 137 of 2000)
44(5)
(Repealed by No 137 of 2000)
44(6)
A person shall not be convicted of both an offence against section 135.2 of the Criminal Code and an offence against section 136.1, 137.1 or 137.2 of the Criminal Code in respect of the same application for:
(a) the expenditure of Commonwealth money under a program to which this Act relates; or
(b) an advance in respect of money that may be paid under such a program.
44(7)
A reference in subsection (6) to a person being convicted of an offence includes a reference to an order being made under section 19B of the Crimes Act 1914 in relation to the person in respect of an offence.
44(8)
(Repealed by No 137 of 2000)
44(9)
(Repealed by No 137 of 2000)
44(10)
(Repealed by No 137 of 2000)
44(11)
(Repealed by No 15 of 2004)
SECTION 45 45 TIME FOR PROSECUTIONS
Notwithstanding anything in any other law, proceedings for an offence against this Act may be instituted within the period of 3 years after the commission of the offence. SECTION 46 46 ANNUAL REPORT
The Board must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on its operations during that year.
SECTION 47
CONFIDENTIALITY
47(1)
An official to whom this section applies must not, unless required or permitted by law to do so, disclose protected information to a person if disclosing of the protected information would constitute a breach of confidence.
47(2)
An official to whom this section applies may disclose protected information to: (a) the Minister; or (aa) a person employed by the Minister under the Members of Parliament (Staff) Act 1984; or (b) the Secretary of the Department; or (c) an officer of the Department designated in writing by the Secretary of the Department as being an officer who is to receive information under this Act.
47(2A)
An official to whom this section applies may disclose protected information if the disclosure is made: (a) in the course of performing a duty or function, or exercising a power, under this Act; or (b) for the purposes of enabling another person to perform duties or functions, or exercise powers, under this Act; or (c) for the purposes of enabling a person to perform duties or functions, or exercise powers, under the Census and Statistics Act 1905 or the Income Tax Assessment Act 1997.
47(3)
In this section:
(a) the Board;
(b) a person who is or has been a member of the Board;
(c) a committee;
(d) a person who is or has been a member of a committee;
(e) a person who is or has been a member of the staff assisting the Board or a committee (see section 25);
(f) a person who is or has been a consultant assisting the Board or a committee (see section 25);
(g) a person who was a member, or an acting member, of the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007);
(h) a person who was a member of the staff assisting the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007);
(i) a person who was a consultant assisting the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007).
SECTION 48
48
REGULATIONS
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. SECTION 48A FEES FOR MAKING APPLICATIONS 48A(1)
The Minister may, by legislative instrument, prescribe fees, or a method of working out fees:
(a) for making applications to the Board under Part III; or
(b) for the purposes of paragraph 33(4)(e).
48A(2)
The fees must not be such as to amount to taxation.
PART VI - (Repealed by No 103 of 2013)
This Act may be cited as the Industry Research and Development Act 1986. SECTION 2 2 COMMENCEMENT
This Act shall come into operation on 1 July 1986. SECTION 3 3 OBJECT OF ACT
The object of this Act is to position Australia as a leading innovation nation by:
(a) facilitating the provision of independent strategic advice about investment in industry, innovation, science and research; and
(b) supporting and encouraging collaboration in the development and delivery of programs relating to industry, innovation, science and research; and
(c) authorising spending on programs relating to industry, innovation, science and research; and
(d) promoting the development, and improving the efficiency and international competitiveness, of Australian industry by encouraging R&D activities, innovation and science activities and venture capital activities.
View history note
Hide history noteIn this Act, unless the contrary intention appears:
accountable authority
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
acting chairperson
(Repealed by No 164 of 2007)
acting member
(Repealed by No 164 of 2007)
agreement under this Act
(Repealed by No 15 of 2004)
application
(Repealed by No 15 of 2004)
appointed member
means the Chairperson, the Deputy Chairperson or a member referred to in paragraph 9(1)(c).
approved form
has the meaning given by section 32.
approved research institute
(Repealed by No 93 of 2011)
Australia
has the same meaning as in the Income Tax Assessment Act 1997.
Australian government body
(Repealed by No 15 of 2004)
Australian government contractor
(Repealed by No 15 of 2004)
Board
means Industry Innovation and Science Australia, established by section 6.
chairperson
means the Chairperson of the Board.
Commissioner
has the same meaning as in the Income Tax Assessment Act 1997.
committee
means a committee appointed under section 22.
company
(Repealed by No 93 of 2011)
consolidated group
has the same meaning as in the Income Tax Assessment Act 1997.
constitutional corporation
has the same meaning as in the Income Tax Assessment Act 1997.
core R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
core technology
has the meaning given by subsection 28E(2).
corporate researcher
(Repealed by No 15 of 2004)
decision-making principles
has the meaning given by section 32A.
Deputy Chairperson
means the Deputy Chairperson of the Board.
designated activity
(Repealed by No 15 of 2004)
discretionary grant
(Repealed by No 15 of 2004)
discretionary grant agreement
(Repealed by No 15 of 2004)
eligible activity
(Repealed by No 15 of 2004)
eligible company
(Repealed by No 15 of 2004)
entity
has the same meaning as in the Income Tax Assessment Act 1997.
finance scheme guidelines
(Repealed by No 93 of 2011)
generic technology grant
(Repealed by No 15 of 2004)
generic technology grant agreement
(Repealed by No 15 of 2004)
head company
has the same meaning as in the Income Tax Assessment Act 1997.
income year
has the same meaning as in the Income Tax Assessment Act 1997.
internal review decision
has the meaning given by section 30D.
MEC group
has the same meaning as in the Income Tax Assessment Act 1997.
member
means the Chairperson, the Deputy Chairperson or another member of the Board.
national interest agreement
(Repealed by No 15 of 2004)
national procurement development program agreement
(Repealed by No 15 of 2004)
non-corporate Commonwealth entity
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
official
has the meaning given by the Public Governance, Performance and Accountability Act 2013.
PDF
has the same meaning as in the Pooled Development Funds Act 1992.
R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
R&D entity
has the same meaning as in the Income Tax Assessment Act 1997.
research and development activities
(Repealed by No 93 of 2011)
researcher
(Repealed by No 63 of 2016)
research field
means a research field specified in regulations made for the purposes of this definition.
research service provider
means an entity registered under section 29A.
reviewable decision
has the meaning given by section 30A.
significant scientific link
has the meaning given by subsection 28D(3).
subsidiary member
has the same meaning as in the Income Tax Assessment Act 1997.
subsidy
(Repealed by No 15 of 2004)
supporting R&D activities
has the same meaning as in the Income Tax Assessment Act 1997.
technical assessment
(Repealed by No 63 of 2016)
4(2)
(Repealed by No 93 of 2011)
4(3)
(Repealed by No 15 of 2004)
4(4)
(Repealed by No 15 of 2004)
4(5)
(Repealed by No 63 of 2016)
4(6)
(Repealed by No 63 of 2016)
4(7)
(Repealed by No 31 of 2014)
4(8)
For the purposes of this Act, the Pooled Development Funds Act 1992, the Venture Capital Act 2002 and any other Act, a person gives information, or produces a document, to the Board if the person gives the information, or produces the document, to:
(a) the Board; or
(b) a member of the Board; or
(c) a committee; or
(d) a member of a committee; or
(e) a member of the staff assisting the Board or a committee (see section 25); or
(f) a consultant assisting the Board or a committee (see section 25).
4(9)
A reference in this Act to research is a reference to research in any field.
This Act extends to every external Territory referred to in the definition of Australia .
The body known immediately before the commencement of the Industry Research and Development Amendment (Industry Innovation and Science Australia) Act 2021 as Innovation and Science Australia is continued in existence with the new name Industry Innovation and Science Australia.
Note:
Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.
The functions of the Board are:
(aa) to provide independent strategic advice to the Secretary, the Minister and other Ministers in relation to industry, innovation, science and research matters; and
(ab) to undertake audits of, and prepare, review and amend plans in relation to, industry, innovation, science and research matters; and
(ac) to promote investment in industry, innovation, science and research; and
(ad) to commission and publish research in relation to industry, innovation, science and research matters; and
(aaa) (Repealed by No 63 of 2016)
(a) such functions as are conferred on it by a provision of this Act (other than this section); and
(b) to evaluate, and to advise the Minister about, the Pooled Development Funds Act 1992 and the Venture Capital Act 2002, and the Commonwealth's income tax laws as they operate in relation to those Acts; and
(b) (Repealed by No 15 of 2004)
(c) such functions as are conferred on it by the Pooled Development Funds Act 1992, the Venture Capital Act 2002 or any other Act; and
(ca) to give information it obtains under Part 2, 3 or 4 of the Venture Capital Act 2002 to the Commissioner for the purposes of implementing and administering the taxation law (within the meaning of the Taxation Administration Act 1953); and
(d) to do anything incidental or conducive to the performance of any of the above functions.
The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. SECTION 9 CONSTITUTION OF BOARD 9(1)
The Board shall consist of:
(a) a Chairperson; and
(aa) a Deputy Chairperson; and
(b) where the Minister considers it appropriate - the person who, at any time, is performing the duties of an office or position in the Australian Public Service that is designated by the Minister, by notifiable instrument, for the purposes of this paragraph; and
(c) not less than 3, or more than 12, other members.
9(2)
The appointed members shall be appointed by the Minister in writing.
9(3)
The appointed members shall be appointed as part-time members.
9(4)
A member holds office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the Minister in writing.
9(5)
The performance of the functions or the exercise of the powers of the Board is not affected by a vacancy in the office of Chairperson or Deputy Chairperson, or because the number of members referred to in paragraph (1)(c) falls below 3 for not longer than 6 months.
Subject to this Act, an appointed member holds office for such period, not exceeding 3 years, as is specified in the instrument of the member's appointment, but he or she is eligible for re-appointment.
10(2)
A person must not be appointed as an appointed member if the person has, at any time before that appointment, served 2 consecutive terms as a member of the Board (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
10(3)
Before the Minister appoints a person as an appointed member for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the appointed members are appointed do not all end at the same time.
SECTION 11 11 DUTIES OF CHAIRPERSON
It is the duty of the Chairperson to ensure the efficient and orderly conduct of the business of the Board, and for that purpose, the Chairperson:
(a) must make, or cause to be made, such inquiries as the Chairperson thinks necessary into:
(i) applications made under this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(ii) any other matter relevant to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; and
(b) may make, or cause to be made, to the Board such reports in relation to those applications as the Chairperson thinks fit; and
(c) may determine the form of the records to be kept by the Board.
(Repealed by No 93 of 2011)
The appointed members shall be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
12(2)
This section has effect subject to the Remuneration Tribunal Act 1973.
SECTION 13 LEAVE OF ABSENCE 13(1)
The Minister may grant leave to the Chairperson to be absent from a meeting or meetings of the Board.
13(2)
The Chairperson may grant leave to another member to be absent from a meeting or meetings of the Board.
SECTION 14 14 RESIGNATION
The Chairperson, the Deputy Chairperson or another appointed member may resign the office of Chairperson, Deputy Chairperson or member, as the case may be, by writing signed by him or her and delivered to the Minister.
The Minister may terminate the appointment of an appointed member:
(a) for misbehaviour; or
(b) for physical or mental incapacity.
15(2)
If an appointed member:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(b) fails, without reasonable excuse, to comply with the member's obligations under section 16; or
(c) is absent from 3 consecutive meetings of the Board otherwise than:
(i) on business of the Board undertaken with the approval of the Board or of a committee; or
(ii) on leave of absence granted under section 13;
the Minister shall remove the member from office.
A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Board shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the Board.
16(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Board and the member shall not, unless the Minister or the Board otherwise determines:
(a) be present during any deliberation of the Board with respect to that matter; or
(b) take part in any decision of the Board with respect to that matter.
16(3)
For the purpose of the making of a determination by the Board under subsection (2) in relation to a member who has made a disclosure under subsection (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Board for the purpose of making the determination; or
(b) take part in the making by the Board of the determination.
16(4)
(Repealed by No 164 of 2007)
SECTION 17 ACTING APPOINTMENTS 17(1)
The Minister may appoint the Deputy Chairperson, a member or other person to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Chairperson;
but a person so appointed shall not continue so to act for more than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
17(1A)
The Minister may appoint a member or other person to act as Deputy Chairperson:
(a) during a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy Chairperson is absent from Australia or is, for any other reason, unable to perform the duties of the office of Deputy Chairperson;
but a person so appointed must not continue to act in that appointment for more than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
17(2)
Where the number of members referred to in paragraph 9(1)(c) is less than 10, the Minister may appoint a person who is not a member to act as a member, but a person so appointed shall not continue so to act:
(a) if and after the number of those members ceases to be less than 10; or
(b) for longer than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
17(3)
The Minister may appoint a person who is not a member to act in the place of a member referred to in paragraph 9(1)(c) during any period, or during all periods, when the member is acting as Chairperson, is absent from Australia or is, for any other reason, unable to perform the duties of the office of member, but a person so appointed shall not continue so to act for longer than 12 months.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
17(4)
(Repealed by No 46 of 2011)
17(5)
(Repealed by No 46 of 2011)
17(6)
(Repealed by No 46 of 2011)
17(7)
(Repealed by No 46 of 2011)
17(8)
(Repealed by No 164 of 2007)
17(9)
(Repealed by No 46 of 2011)
SECTION 18 MEETINGS OF BOARD 18(1)
The Board shall hold such meetings as are necessary for the efficient performance of its functions.
18(2)
The Chairperson:
(a) may, at any time, convene a meeting of the Board; and
(b) shall, if directed by the Minister to convene a meeting of the Board, convene a meeting of the Board.
18(3)
The Chairperson shall preside at all meetings of the Board at which he or she is present.
18(4)
If the Chairperson is not present at a meeting of the Board:
(a) the Deputy Chairperson is to preside; or
(b) if the Deputy Chairperson is not present - the members present must appoint one of their number to preside at the meeting.
18(5)
At a meeting of the Board, 4 members constitute a quorum.
18(6)
Questions arising at a meeting of the Board shall be determined by a majority of the votes of the members present and voting and:
(a) if the Chairperson is present - the Chairperson has a deliberative vote and, in the case of an equality of votes, also has a casting vote; or
(b) if the Chairperson is not present and a question arising at the meeting cannot be determined by a majority of the votes of the members present and voting - the question shall be deferred to a meeting at which the Chairperson is present.
18(7)
The Board shall cause minutes of its meetings to be kept.
18(8)
(Repealed by No 164 of 2007)
SECTION 18A 18A MINISTER MAY GIVE DIRECTIONS CONCERNING THE PROVISION OF TECHNICAL ASSESSMENTS
(Repealed by No 63 of 2016)
Directions conferring additional functions
19(1)
The Minister may, by notifiable instrument, give directions to the Board that a function specified in the direction (being a function relating to the object of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002) is an additional function of the Board.
Directions about the performance of functions and exercise of powers
19(2)
The Minister may, by notifiable instrument, give written directions to the Board about the performance of its functions or the exercise of its powers.
19(3)
Without limiting subsection (2), the Minister may give directions to the Board in relation to:
(a) the provision of technical assessments to the Minister in relation to programs or activities, or proposals for programs or activities, under or in connection with this Act; or
(b) the provision of a report or advice on a matter that relates to:
(i) any of the Board's functions or powers; or
(ii) the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(iii) the operation of the Commonwealth's income tax laws as they operate in relation to this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002; or
(c) policies and practices to be followed by the Board in the performance of its functions and the exercise of its powers.
19(4)
Subsection (2) does not empower the Minister to direct that the Board perform any of its functions, or exercise any of its powers, in a particular way in a particular case.
Limits and obligations relating to directions under this section
19(5)
A direction under subsection (1) or (2) must not confer a function on the Board to commit or authorise the expenditure of Commonwealth money.
19(6)
The Board must comply with a direction given under this section.
(Repealed by No 63 of 2016)
(Repealed by No 63 of 2016)
(Repealed by No 63 of 2016)
The Minister may give advice to the Board, or to a committee, on any matter that relates, directly or indirectly, to the performance of any of the Board's functions.
20A(2)
The advice is to be in writing, delivered to the Chairperson of the Board or of the committee, as the case may be, and is to be expressed to be given under this section.
20A(3)
The advice must not relate to a particular person.
20A(4)
The Board or committee must consider the advice at its first meeting after the advice is received, but the Board or committee is not required to act in accordance with the advice.
SECTION 21 DELEGATION BY BOARD 21(1)
The Board may, by resolution, delegate any or all of its functions and powers to any of the following: (a) the Chairperson; (b) the Deputy Chairperson; (c) a member of the Board; (d) a committee; (e) a member of the staff assisting the Board.
21(2)
(Repealed by No 63 of 2016)
21(3)
A delegation of a function or power under this section: (a) may be revoked by a resolution of the Board (whether or not constituted by the persons constituting the Board at the time the function or power was delegated); and (b) (Repealed by No 164 of 2007) (c) continues in force notwithstanding a change in the membership of the Board.
21(4)
Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Board were a person.
21(5)
A certificate signed by the Chairperson stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
21(6)
A document purporting to be a certificate mentioned in subsection (5) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
21(7)
(Repealed by No 164 of 2007)
21(8)
(Repealed by No 164 of 2007)
The Minister may, by notifiable instrument, appoint such committees as the Minister considers necessary for providing advice to the Board on matters relating to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002.
22(1A)
In addition to providing advice to the Board as mentioned in subsection (1), a committee may exercise any functions or powers delegated to it by the Board under subsection 21(1).
22(2)
A committee shall consist of not more than 7 members (who may include a member or members of the Board) who shall be appointed by the Minister in accordance with subsections (2A), (2B), (2BA) and (2C) and shall hold office, for the periods for which they are appointed, during the pleasure of the Minister.
22(2A)
A member of a committee is to be appointed for a particular period, not exceeding 3 years, determined by the Minister.
22(2B)
A person must not be appointed as a member of a committee if the person has, at any time before that appointment, served 2 consecutive terms as a member of the committee (whether or not either or both of those terms commenced or ended before the commencement of this subsection).
22(2BA)
Despite subsection (2B), a person may be appointed as a member of a committee for no more than 2 further consecutive terms if:
(a) during the previous 2 consecutive terms the person was not the Chairperson of the committee; and
(b) the person will be the Chairperson of the committee in those further terms.
22(2C)
Before the Minister appoints a person as a member of a committee for a particular period, the Minister must be satisfied that appointing the member for that period would be appropriate, having regard to the desirability of ensuring, if practicable, that the periods for which the committee members are appointed do not all end at the same time.
22(3)
The Minister may appoint a member of a committee to be the Chairperson of the committee.
22(4)
Where the Minister notifies a committee that he or she does not propose to appoint a Chairperson of the committee under subsection (3), the committee shall elect a member of the committee to be the Chairperson of the committee.
22(5)
A member of a committee shall hold office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
22(6)
A member of a committee may resign by writing signed by the member and delivered to the Minister.
22(7)
The Board may refer to a committee for advice any matter relating to the operation of this Act, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002.
22(8)
A committee shall cause minutes of its meetings to be kept.
22(9)
(Repealed by No 93 of 2011)
A committee may, by resolution, delegate to a member of the committee or to a member of the staff assisting the committee all or any of its functions and powers (including a function or power delegated to the committee by the Board under subsection 21(1), despite paragraph 34AB(1)(b) of the Acts Interpretation Act 1901).
22A(1A)
(Repealed by No 63 of 2016)
22A(2)
A delegation of a function or power under this section: (a) may be revoked by a resolution of the committee (whether or not constituted by the persons constituting the committee when the function or power was delegated); and (b) continues in force notwithstanding a change in the membership of the committee.
22A(3)
A certificate signed by the Chairperson of a committee stating any matter with respect to a delegation of a function or power under this section is evidence of that matter unless evidence to the contrary is given.
22A(4)
A document purporting to be a certificate mentioned in subsection (3) shall, unless the contrary is established, be taken to be such a certificate and to have been duly given.
22A(5)
(Repealed by No 164 of 2007)
22A(6)
(Repealed by No 164 of 2007)
The Board may, by notifiable instrument, give directions with respect to:
(a) the matters to be taken into account by a committee in giving advice in relation to a matter or matters; or
(b) the practices to be followed by the committee in the performance of its functions.
23(2)
Directions under subsection (1) shall be in writing and shall be given to the Chairperson of the committee to which the directions are given.
23(3)
The Board shall not give directions to a committee under subsection (1) unless and until the Board:
(a) has given to the Chairperson of the committee:
(i) particulars in writing of the proposed directions; and
(ii) an invitation to the Committee in writing to give the Board, within a time specified in the invitation, any comments in writing which the committee wishes to give in relation to the proposed directions; and
(b) has considered any comments given in response to the invitation.
23(4)
(Repealed by No 63 of 2016)
SECTION 24 DISCLOSURE OF INTERESTS BY MEMBERS OF COMMITTEES 24(1)
A member of a committee who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the committee shall, as soon as possible after the relevant facts have come to the knowledge of the member, disclose the nature of that interest at a meeting of the committee.
24(2)
A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the committee and a member of a committee shall not, unless the Minister or the committee otherwise determines:
(a) be present during any deliberation of the committee with respect to that matter; or
(b) take part in any decision of the committee with respect to that matter.
24(3)
For the purpose of the making of a determination by the committee under subsection (2) in relation to a member of a committee who has made a disclosure under subsection (1), a member of a committee who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the committee for the purpose of making the determination; or
(b) take part in the making by the committee of the determination.
SECTION 25 STAFF, CONSULTANTS ETC 25(1)
The staff required to assist the Board and committees in the performance of their functions shall be persons engaged under the Public Service Act 1999.
25(2)
The Board and committees may also be assisted by consultants, or other persons, engaged by the Commonwealth.
PART III - FUNCTIONS RELATING TO THE R&D TAX OFFSET
The objects of this Part are:
(a) to provide integrity for the working out of tax offsets under Division 355 (about R&D) of the Income Tax Assessment Act 1997; and
(b) to increase certainty through findings about matters relevant to the working out of those tax offsets; and
(c) to improve access for small and medium R&D entities to quality research services by maintaining a register of research service providers.
Note:
The integrity mentioned in paragraph (a) is provided, for example, by:
Thefollowing is a simplified outline of this Part:
The following is a simplified outline of this Division:
The Board must, on application by an R&D entity, decide whether to register or refuse to register the entity for either or both of the following for an income year:
(a) one or more specified activities as core R&D activities conducted during the income year;
(b) one or more specified activities as supporting R&D activities conducted during the income year;
Note 1:
A decision under this subsection is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 27D.
27A(2)
If the Board decides under subsection (1) to register the R&D entity, the Board must do so consistently with:
(a) any findings already in force under subsection 27B(1) in relation to the application; and
(b) any findings already in force under subsection 28A(1) (advance findings about the nature of activities) in relation to the R&D entity.
27A(3)
For each activity registered under subsection (1) as a supporting R&D activity for an R&D entity for an income year, the registration is to also specify:
(a) one or more activities as the corresponding core R&D activities; and
(b) if any of those activities specified as a core R&D activity is not registered under paragraph (1)(a) for the R&D entity for the income year - each income year for which that core R&D activity:
(i) was registered under paragraph (1)(a) for the R&D entity; or
(ii) is proposed to be registered under paragraph (1)(a) for the R&D entity.
[ CCH Note: No 93 of 2011, s 3 and Sch 4 Pt 4 items 16 to 18 contain the following savings and transitional provisions:
]Part 4 - Other savings and transitional provisions
16 R&D activities registered under the old law
16
A reference in each of the following provisions of the Industry Research and Development Act 1986 (as amended by this Act) to a registration under section 27A of that Act includes a reference to a registration under former section 39J of that Act:
(a) subparagraph 27A(3)(b)(i);
(b) subparagraph 27B(1)(c)(ii);
(c) subparagraph 27J(1)(c)(ii);
(d) paragraph 28A(1)(b);
(e) paragraph 28D(2)(b).Note:
For each of these provisions, the R&D activity registered under former section 39J will need to be a core R&D activity within the meaning of the amendments made by this Act.
17 Australian research agencies registered under the old law
(1)
This item applies to an entity registered, immediately before the commencement of this item, under section 39F of the Industry Research and Development Act 1986 as an Australian research agency in respect of one or more classes (the research classes ) of Australian research and development activities.
(2)
The entity is taken, immediately after the commencement of this item, to be registered under section 29A of that Act as a research service provider qualified to provide services in research fields corresponding to those research classes.
18 Regulations
(1)
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)
The Governor-General may make regulations dealing with matters of a transitional, savings or application nature relating to the repeals and amendments made by this Act.
The Board may make one or more findings to the following effect when considering an R&D entity's application for the purposes of subsection 27A(1):
(a) that all or part of an activity mentioned in the application was a core R&D activity conducted during the income year;
(b) that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (a);
(c) that all or part of an activity mentioned in the application was a supporting R&D activity conducted:
(i) during the income year; and
(ii) in relation to one or more specified core R&D activities for which the entity has been or could be registered under section 27A for an income year;[ CCH Note: For savings and transitional provisions see note under s 27A(3).]
(d) that all or part of an activity mentioned in the application was not an activity of a kind covered by paragraph (c).
Note 1:
A finding is reviewable (see Division 5).
Note 2:
The Board could make a finding under paragraph (b) if, for example, the Board has insufficient information to make a finding under paragraph (a). Similarly, the Board could make a finding under paragraph (d) if it has insufficient information to make a finding under paragraph (c).
Note 3:
The Board may also make findings after registration (see subsection 27J(1)).
27B(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's application, the Board may specify in the finding the times to which the finding relates.
Example:
A finding under paragraph (1)(a) could specify the times during the income year that an activity was a core R&D activity.
27B(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
The Board must notify an applicant in writing of the Board's decision under subsection 27A(1) about the application.
27C(2)
The notice must include a certificate for each finding (if any) made under subsection 27B(1) for the application. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) the activity affected by the finding; and
(d) the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
27C(3)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
27C(4)
A failure to comply with this section does not affect the validity of the decision or finding.
An application to register activities under section 27A for an income year must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section; and
(c) made within:
(i) 10 months after the end of the income year; or
(ii) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32 deals with approved forms.
Note 3:
Section 32A deals with the decision-making principles.
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
27E(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a finding under paragraph 27B(1)(b) or (d).
27E(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
27E(4)
Subsections (2) and (3) do not limit subsection (1).
The Board may conduct one or more examinations of all or part of an R&D entity's registration under section 27A for an income year for the purposes of making one or more findings under subsection 27J(1).
Note:
A finding under subsection 27J(1) will support the entity's registration, or cause the variation of that registration.
27F(2)
The Board may examine an R&D entity's registration on its own initiative.
27F(3)
The Board must examine an R&D entity's registration if:
(a) requested by the Commissioner; or
(b) the R&D entity has applied for one or more findings under subsection 27J(1) about the registration.
Note:
A finding under subsection 27J(1) can only bind the Commissioner for the purposes of the R&D entity's income tax assessment for the income year if the finding is made within 4 years after the end of the income year (see subsection 355-705(1) of the Income Tax Assessment Act 1997).
27F(4)
If the R&D entity applies for a finding under subsection 27J(1) about the registration, the Board must:
(a) make one or more findings under subsection 27J(1) about the registration; or
(b) if justified in accordance with the decision-making principles - refuse to make a finding under subsection 27J(1) about the registration.
Note 1:
The Board may make a finding that differs from that sought by the R&D entity.
Note 2:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 3:
Section 32A deals with the decision-making principles.
An application for one or more findings under subsection 27J(1) must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
Note 1:
An application can seek findings for several activities.
Note 2:
Section 32 deals with approved forms.
When examining an R&D entity's registration, the Board may request the entity in writing to give specified information, or specified kinds of information, to the Board about the entity's registration.
27H(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a finding under paragraph 27J(1)(b) or (d).
27H(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
27H(4)
Subsections (2) and (3) do not limit subsection (1).
The Board may make one or more findings to the following effect about an R&D entity's registration under section 27A for an income year (the registration year ):
(a) that all or part of a registered activity was a core R&D activity conducted during the registration year;
(b) that all or part of a registered activity was not an activity of a kind covered by paragraph (a);
(c) that all or part of a registered activity was a supporting R&D activity conducted during the registration year and in relation to:
(i) one or more specified registered core R&D activities; or
(ii) one or more specified core R&D activities for which the entity has been registered in an earlier income year; or[ CCH Note: For savings and transitional provisions see note under s 27A(3).]
(iii) one or more specified core R&D activities yet to be conducted for which the entity could be registered in the registration year if those activities were conducted during the registration year; or
(iv) several specified core R&D activities, each covered by subparagraph (i), (ii) or (iii);
(d) that all or part of a registered activity was not an activity of a kind covered by paragraph (c).
Note 1:
A finding is reviewable (see Division 5).
Note 2:
The Board could make a finding under paragraph (b) if, for example, the Board has insufficient information to make a finding under paragraph (a). Similarly, the Board could make a finding under paragraph (d) if it has insufficient information to make a finding under paragraph (c).
27J(2)
If the Board makes a finding under subsection (1) in relation to the R&D entity's registration, the Board may specify in the finding the times to which the finding relates.
Example:
A finding under paragraph (1)(a) could specify the times during the registration year that a registered activity was a core R&D activity.
27J(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
The Board must notify the R&D entity, and the Commissioner, in writing of any findings under subsection 27J(1) about the entity's registration under section 27A.
27K(2)
The notice must include a certificate for each finding. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) the registered activity affected by the finding; and
(d) the effect of the finding on the entity's registration; and
(e) the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note 1:
For the effect of the finding of the entity's registration, see section 27L (about automatic variations to registrations).
Note 2:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
27K(3)
The Board must notify the R&D entity in writing of any decision under paragraph 27F(4)(b) refusing to make a finding under subsection 27J(1) in response to an application under section 27G by the R&D entity.
27K(4)
A failure to comply with this section does not affect the validity of a finding or decision.
If an R&D entity is registered under section 27A for an income year, then while a finding is in force:
(a) under subsection 27B(1) in relation to the application for the registration; or
(b) under subsection 27J(1) in relation to the registration;
the registration is taken always to have existed in a form consistent with the finding.
Note 1:
This subsection will cease to apply if the finding is set aside on review (see Division 5).
Note 2:
A finding has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity (see section 32B).
27L(2)
If:
(a) a finding under subsection 28A(1) (advance findings about the nature of activities) comes into force for an R&D entity about an activity conducted during an income year; and
(b) the R&D entity is later registered under section 27A for the activity for the income year;
then, after registration and while the finding is in force, the registration is taken to exist in a form consistent with the finding.
Note 1:
This subsection will cease to apply if the finding is set aside on review (see Division 5).
Note 2:
A finding has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity (see section 32B).
27L(3)
This section has effect for the purposes of this Act and the Income Tax Assessment Act 1997.
The Board may, by notice in writing given to an R&D entity, vary the entity's registration under section 27A for an income year if:
(a) the entity applies for the variation; and
(b) the variation is consistent with the Board's findings (if any) in force under this Part in relation to the R&D entity; and
(c) making the variation is justified in accordance with the decision-making principles.
Note 1:
A decision not to vary is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
27M(2)
An application for a variation must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
27M(3)
Section 27E applies to an application under this section in a way corresponding to the way that section applies to an application under section 27D.
Note:
This means the Board may request further information about the application for variation.
27M(4)
For the purposes of this Act and the Income Tax Assessment Act 1997, the effect of a variation is that the entity's registration under section 27A for the income year is taken always to have existed as varied.
The Board may, by notice in writing given to an entity, revoke the entity's registration under section 27A for an income year if the Board is satisfiedthat the entity was not an R&D entity at any time when an activity covered by the registration was conducted during the income year.
Note:
A decision to revoke under this subsection is reviewable (see Division 5).
27N(2)
The Board may, by notice in writing given to an R&D entity, revoke the entity's registration under section 27A for an income year if the entity requests the Board to do so.
27N(3)
A request for a revocation under subsection (2) must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
27N(4)
For the purposes of this Act, and the Income Tax Assessment Act 1997, the effect of a revocation under this section is that the entity is taken never to have been registered under section 27A for the income year.
Note:
This subsection will cease to apply if a revocation under subsection (1) is set aside on review (see Division 5).
27N(5)
The Board must notify the Commissioner of a revocation under this section.
The following is a simplified outline of this Division:
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a) find that all or part of the activity is a core R&D activity;
(b) find that all or part of the activity is a supporting R&D activity in relation to one or more specified core R&D activities for which the entity has been or could be registered under section 27A for an income year;
[ CCH Note: For savings and transitional provisions see note under s 27A(3).]
(c) make a finding to the effect that all or part of the activity is neither:
(i) a core R&D activity; nor
(ii) a supporting R&D activity of a kind covered by paragraph (b);
(d) if justified inaccordance with the decision-making principles - refuse to make a finding about all or part of the activity.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 28G.
Note 3:
A finding binds the Commissioner for the purposes of income tax assessments for certain income years (see subsections 55-705(2) and (3) of the Income Tax Assessment Act 1997).
Note 4:
Section 32A deals with the decision-making principles.
28A(2)
The Board must not make a finding under subsection (1) about an activity unless the Board is satisfied that the activity:
(a) is being conducted, or has been completed, during the income year in which the application is made; or
(b) is yet to be conducted, but that it is reasonable to expect that the activity will be conducted in any or all of the following income years:
(i) the income year in which the application is made;
(ii) either of the next 2 income years.
28A(3)
If the Board makes a finding under subsection (1) about an activity that is being conducted, or has been completed, during the income year in which the application is made, the Board may specify in the finding the times to which the finding relates.
28A(4)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
An application for a finding under subsection 28A(1) may be made on behalf of an R&D entity by an entity who:
(a) is specified in regulations made for the purposes of this subsection; and
(b) is acting with the R&D entity's written consent.
The application is taken to be made by the R&D entity.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
28B(2)
If:
(a) an entity could, under subsection (1), make an application on behalf of more than one R&D entity for the same findingfor the same activity; and
(b) the entity applies (the joint application ) under subsection 28G(2) for the finding on behalf of those R&D entities;
the joint application is taken to be a separate application under subsection 28G(1) for the finding by each of those R&D entities.
The Board must, on application by an R&D entity for a finding under this subsection about an activity, do one or more of the following:
(a) find that all or part of the activity is an activity (the overseas activity ) that meets the conditions in section 28D;
(b) find that all or part of the activity is not an activity that meets the conditions in section 28D;
(c) if justified in accordance with the decision-making principles - refuse to make a finding about all or part of the activity.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
For requirements of applications, see section 28G.
Note 3:
An effect of a finding under paragraph (a) is that a tax offset may be available for expenditure incurred on the overseas activity after the finding comes into force (see Division 355 of the Income Tax Assessment Act 1997, in particular paragraphs 355-210(1)(d) and (e) of that Act).
Note 4:
Section 32A deals with the decision-making principles.
28C(2)
For the purposes of this Act and the Income Tax Assessment Act 1997, a finding under subsection (1) comes into force at the start of the income year in which the application for the finding is made.
28C(3)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
Must be an R&D activity
28D(1)
The first condition is that the overseas activity is covered by a finding under paragraph 28A(1)(a) or (b) (findings that activities are R&D activities).
Must have significant scientific link to Australian core activities
28D(2)
The second condition is that the overseas activity has a significant scientific link to one or more core R&D activities (the Australian core activities ):
(a) that are conducted or to be conducted solely within Australia; and
(b) that:
(i) are registered under section 27A for the R&D entity for an income year; or
(ii) are reasonably likely to be conducted and be registered under section 27A for the R&D entity for an income year.
[ CCH Note: For savings and transitional provisions see note under s 27A(3).]
28D(3)
The overseas activity has a significant scientific link to the Australian core activities if:
(a) the Australian core activities cannot be completed without the overseas activity being conducted; and
(b) the conditions (if any) specified in regulations made for the purposes of this subsection are met.
Must be unable to be conducted within Australia etc.
28D(4)
The third condition is that the overseas activity cannot be conducted solely in Australia because:
(a) conducting it requires access to a facility, expertise or equipment not available in Australia; or
(b) conducting it in Australia would contravene the Biosecurity Act 2015 or a law relating to quarantine; or
(c) conducting it requires access to a population (of living things) not available in Australia; or
(d) conducting it requires access to a geographical or geological feature not available in Australia; or
(e) it meets a condition (if any) specified in regulations made for the purposes of this subsection.
Expenditure must be less than that incurred on Australian core activities
28D(5)
The fourth condition is that the total actual and reasonably anticipated expenditure of any entity in all income years on:
(a) the overseas activity; and
(b) each other activity (if any) conducted wholly or partly outside Australia that has a significant scientific link to the Australian core activities;
is less than the total actual and reasonably anticipated expenditure of any entity in all income years on:
(c) the Australian core activities; and
(d) activities conducted solely within Australia that are supporting R&D activities in relation to the Australian core activities.
If an R&D entity has acquired, or has acquired the right to use, particular technology wholly or partly for the purposes of one or more R&D activities conducted, or to be conducted, during one or more income years, the Board may:
(a) find that the technology is core technology for the R&D activities; or
(b) find that the technology is not core technology for the R&D activities; or
(c) if justified in accordance with the decision-making principles - refuse to make a finding about the technology and the R&D activities.
Note 1:
A finding, or a refusal to make a finding, is reviewable (see Division 5).
Note 2:
A finding under paragraph (a) means that a tax offset will not be available for expenditure incurred in acquiring, or in acquiring the right to use, the technology for the R&D activities (see subsection 355-225(2) of the Income Tax Assessment Act 1997).
Note 3:
Section 32A deals with the decision-making principles.
28E(2)
Particular technology is core technology for one or more R&D activities if:
(a) a purpose of the R&D activities was or is:
(i) to obtain new knowledge based on that technology; or
(ii) to create new or improved materials, products, devices, processes, techniques or services to be based on that technology; or
(b) the R&D activities were or are an extension, continuation, development or completion of the activities that produced that technology.
28E(3)
The Board must make a finding under paragraph (1)(a) or (b) if requested by the Commissioner to make a finding under this section.
28E(4)
In addition to subsection (3), the Board:
(a) may make a finding under subsection (1) on its own initiative; and
(b) must make a decision under subsection (1) if the R&D entity applies for a finding under this section.
Note:
For requirements of applications, see section 28G.
28E(5)
This section has effect subject to section 32B (findings cannot be inconsistent with any earlier findings).
The Board must notify an applicant in writing of each of the Board's decisions under subsection 28A(1) or 28C(1) about the application.
28F(2)
The Board must notify an R&D entity in writing of each of the Board's decisions under subsection 28E(1) that relates to the R&D entity.
28F(3)
A notice under subsection (1) or (2) must include a certificate for each finding (if any) to which the decision relates. The certificate must set out:
(a) a description of the finding; and
(b) the Board's reasons for the finding; and
(c) a description of the activity affected by the finding; and
(d) for a finding under subsection 28E(1) - a description of the technology affected by the finding; and
(e) the matters (if any) specified in regulations made for the purposes of this paragraph.
The notice and certificate may set out other matters.
Note:
The notice could also mention the applicant's right to have the finding reviewed under Division 5 (see section 30B).
28F(4)
The Board must give the Commissioner a copy of the notice if the notice includes one or more certificates.
28F(5)
A failure to comply with this section does not affect the validity of a decision or finding.
Applications for findings
28G(1)
An application for one or more findings under this Division must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this subsection.
Note 1:
An application can seek findings for several activities.
Note 2:
Section 32 deals with approved forms.
Joint applications for identical advance findings
28G(2)
An application for identical findings under subsection 28A(1) on behalf of several R&D entities must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this subsection.
Note:
The application is taken to be a separate application under subsection (1) of this section for the finding by each of those R&D entities (see subsection 28B(2)).
The Board may request in writing:
(a) for an application taken to be made by an R&D entity because of section 28B - the entity that acted on behalf of the R&D entity in relation to the application; or
(b) otherwise - the applicant;
to give specified information, or specified kinds of information, to the Board about the application.
28H(2)
The request may be for the information or kinds of information to be given within:
(a) 30 days after the request was made; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
Note 3:
A failure by the entity to give the information may result in a refusal to make the finding.
28H(3)
The request may be for the information or kinds of information to be given in the approved form:
Note:
Section 32 deals with approved forms.
28H(4)
Subsections (2) and (3) do not limit subsection (1).
The following is a simplified outline of this Division:
The Board must, on application by an entity, decide whether to register or refuse to register the entity as a research service provider capable of providing services in one or more specified research fields to R&D entities registered under section 27A.
Note:
A decision under this subsection is reviewable (see Division 5).
29A(2)
The Board must not register the entity under subsection (1) unless the Board is satisfied that the entity meets the criteria specified in regulations made for the purposes of this subsection.
29A(3)
A registration under this section is subject to the conditions (if any) specified in regulations made for the purposes of this subsection.
An application to be registered under section 29A must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
The Board may request the applicant in writing to give specified information, or specified kinds of information, to the Board about the application.
29C(2)
The request may be for the information or kinds of information to be given within 30 days after the request was made.
29C(3)
The request may be for the information or kinds of information to be given in the approved form.
Note:
Section 32 deals with approved forms.
29C(4)
Subsections (2) and (3) do not limit subsection (1).
29C(5)
The Board may refuse to consider the application if the applicant fails to give the information within:
(a) the 30 days referred to in subsection (2); or
(b) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
The Board may notify the applicant in writing that the Board:
(a) needs to make inquiries in order to determine whether the applicant meets the criteria for registration referred to in subsection 29A(2); and
(b) requires the applicant to pay the Board a specified amount towards the cost of those inquiries.
29D(2)
The Board may refuse to consider the application until the applicant pays the Board that amount.
29D(3)
An amount specified in a notice under subsection (1) must not exceed the higher of:
(a) $1,000; and
(b) the amount (if any) specified in regulations made for the purposes of this subsection;
and must not be such as to amount to taxation.
At least 2 months before the end of each financial year, the Board must give each research service provider a notice:
(a) asking the provider if it wishes to continue to be registered under section 29A; and
(b) attaching an approved form to be completed by the provider and returned to the Board if the provider wishes to continue to be registered.
This subsection does not apply to a provider who becomes registered under section 29A in May or June of that financial year.
Note:
Section 32 deals with approved forms.
29E(2)
The Board may, by notice in writing given to the provider, revoke the provider's registration under section 29A if the provider does not return the completed form within:
(a) 30 days after the notice under subsection (1) was given; or
(b) a further period allowed by the Board in accordance with the decision-making principles.
Note 1:
A decision to revoke under this subsection is reviewable (see Division 5).
Note 2:
Section 32A deals with the decision-making principles.
29E(3)
For the purposes of this Act and the Income Tax Assessment Act 1997, the revocation takes effect at the end of that financial year.
Note:
This subsection will cease to apply if the revocation is set aside on review (see Division 5).
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section 29A if:
(a) the provider applies for the variation; and
(b) the Board is satisfied that the provider would still meet the criteria for registration referred to in subsection 29A(2) were the application to be successful.
Note:
A refusal to vary is reviewable (see Division 5).
29F(2)
An application for a variation must be:
(a) in the approved form; and
(b) accompanied by the fee (if any) specified in regulations made under section 48A for the purposes of this section.
Note:
Section 32 deals with approved forms.
29F(3)
Sections 29C and 29D apply to applications under this section in a way corresponding to the way those sections apply to applications under section 29B.
Note:
This means the Board may request further information about the application for variation, and make inquiries about the application for variation.
The Board may, by notice in writing given to a research service provider, vary the provider's registration under section 29A so that the provider ceases to be registered to provide services in one or more specified research fields.
Note 1:
A decision to vary is reviewable (see Division 5).
Note 2:
This subsection will cease to apply if the variation is set aside on review (see Division 5).
29G(2)
The Board may do so if the Board is satisfied that the provider does not meet the criteria for registration referred to in subsection 29A(2) in so far as those criteria relate to those research fields.
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section 29A if the Board is satisfied:
(a) that the provider has ceased to meet the criteria for registration referred to in subsection 29A(2); or
(b) that the provider has breached a condition, referred to in subsection 29A(3), of the registration.
Note 1:
A decision to revoke under this subsection is reviewable (see Division 5).
Note 2:
This subsection will cease to apply if the revocation is set aside on review (see Division 5).
Note 3:
Revocation can also happen under subsection 29E(2) if the provider does not appropriately indicate that it wishes to continue to be registered for the next financial year.
29H(2)
The Board may, by notice in writing given to a research service provider, revoke the provider's registration under section 29A if the provider requests the Board to do so.
29H(3)
A request for a revocation under subsection (2) must be in the approved form.
Note:
Section 32 deals with approved forms.
The Board is to make available for inspection on the internet a register that includes details of:
(a) registrations in force under this Division; and
(b) registrations that have been revoked under this Division during the current financial year or the previous financial year.
Note 1:
A registration in force under this Division includes the research fields for which the provider is registered.
Note 2:
A registration in force under this Division is that registration as varied under section 29F or 29G.
29J(2)
The register is not a legislative instrument.
The following is a simplified outline of this Division:
Each of the following decisions of the Board is a reviewable decision .
| Reviewable decisions | ||
| Item | Decision | Provision under which decision is made |
| 1 | Registering or refusing to register an entity for activities | Subsection 27A(1) |
| 2 | A finding made when considering an application for registration of activities | Subsection 27B(1) |
| 3 | Refusing to allow a further period for making an application for registration of activities | Paragraph 27D(c) |
| 4 | Refusing to allow a further period for giving further information about an application for registration of activities | Paragraph 27E(2)(b) |
| 5 | Refusing to make a finding about a registration of activities | Paragraph 27F(4)(b) |
| 6 | Refusing to allow a further period for giving further information about an examination of a registration of activities | Paragraph 27H(2)(b) |
| 7 | A finding made about a registration of activities | Subsection 27J(1) |
| 8 | Refusing to vary on application a registration of activities | Subsection 27M(1) |
| 9 | Refusing to allow a further period for giving further information about an application for variation of a registration of activities | Paragraph 27E(2)(b), as that paragraph applies because of subsection 27M(3) |
| 10 | Revoking a registration of activities | Subsection 27N(1) |
| 11 | An advance finding, or refusing to make an advance finding, about the nature of an activity | Subsection 28A(1) |
| 12 | A finding, or refusing to make a finding, about an activity to be conducted outside Australia | Subsection 28C(1) |
| 13 | A finding, or refusing to make a finding, about particular technology | Subsection 28E(1) |
| 14 | Refusing to allow a further period for giving further information about an application for:
(a) an advance finding about the nature of an activity; or (b) a finding about an activity to be conducted outside Australia; or (c) a finding that technology is core technology |
Paragraph 28H(2)(b) |
| 15 | Registering or refusing to register an entity as a research service provider | Subsection 29A(1) |
| 16 | Refusing to allow a further period for giving further information about an application for registration as a research service provider | Subsection 29C(3) |
| 17 | Revoking a research service provider's registration for not returning a completed form about continuing that registration | Subsection 29E(2) |
| 18 | Refusing to vary on application a research service provider's registration | Subsection 29F(1) |
| 19 | Refusing to allow a further period for giving further information about an application for variation of a research service provider's registration | Subsection 29C(3), as that subsection applies because of subsection 29F(3) |
| 20 | Varying a research service provider's registration otherwise than on application | Subsection 29G(1) |
| 21 | Revoking a research service provider's registration | Subsection 29H(1) |
| 22 | Refusing to allow a further period for making an application for review of a decision | Subsection 30C(3) |
When making a reviewable decision relating to an entity, the Board must give written notice to the entity of the following things:
(a) the making of the decision;
(b) the reasons for the decision;
(c) the entity's right to have the decision reviewed under this Division.
30B(2)
If written notice of any of these things is given to the entity under another provision of this Part, notice of the thing does not have to be given twice.
Note:
Other provisions of this Part require notice to be given about decisions covered by item 2, 7 or 11 of the table in section 30A.
30B(3)
A failure to comply with this section does not affect the validity of the decision.
Applications by affected entities
30C(1)
An application for review of a reviewable decision may be made by or on behalf of any entity whose interests are affected by the reviewable decision.
30C(2)
An application under subsection (1) must be in the approved form.
Note:
Section 32 deals with approved forms.
30C(3)
An application under subsection (1) for review of a reviewable decision must be made within:
(a) 28 days after the entity to which the decision relates is notified of the decision under this Part; or
(b) such further period as the Board allows in accordance with the decision-making principles.
Note 1:
A refusal to allow a further period is reviewable (see section 30A).
Note 2:
Section 32A deals with the decision-making principles.
Applications by Commissioner
30C(4)
The Commissioner may, at any time, apply to the Board for review of a reviewable decision.
After receiving an application for review of a reviewable decision, the Board must review the decision.
Making internal review decisions
30D(2)
After reviewing the reviewable decision, the Board must make a decision (an internal review decision ): (a) confirming the reviewable decision; or (b) varying the reviewable decision; or (c) setting aside the reviewable decision and substituting a new decision.
Note:
An internal review decision is reviewable by the Administrative Review Tribunal (see section 30E). Under the Administrative Review Tribunal Act 2024 Administrative Appeals Tribunal Act 1975, notice of the internal review decision must be given to any person whose interests are affected by the decision.
Deemed internal review decisions
30D(3)
If the Board does not make a decision under subsection (2) before the end of the period of 90 days after the day on which the Board received the application for review, the Board is taken, at the end of that period, to have made a decision (also an internal review decision ) confirming the reviewable decision.
30D(4)
However, an internal review decision (the deemed decision ) is taken not to have been made under subsection (3) if: (a) after the end of the period referred to in that subsection, the Board makes a decision under subsection (2) about the applicable reviewable decision; and (b) an application has yet to be made under section 30E to the Administrative Review Tribunal for review of the deemed decision.
Matters relevant to all internal review decisions
30D(5)
For the purposes of this Act and the Income Tax Assessment Act 1997, an internal review decision takes effect on the day on which the reviewable decision took effect.
30D(6)
The Board must notify the Commissioner in writing of: (a) the making of an internal review decision; and (b) the reasons for that decision.
Application may be made to the Administrative Review Tribunal for review of an internal review decision of the Board.
30E(2)
Subsections 108(2) and (4) of the Administrative Review Tribunal Act 2024 have effect for the purposes of this Act and the Income Tax Assessment Act 1997 for: (a) an internal review decision as varied by the Tribunal under section 105 of the Administrative Review Tribunal Act 2024; or (b) a decision made by the Tribunal under that section in substitution for an internal review decision.
Note:
This means that the varied or substituted decision takes effect from the day on which the reviewable decision took effect (see subsection 30D(5)).
30E(3)
If an internal review decision is taken to be made under subsection 30D(3), then, despite section 18 (when to apply - general rule) of the Administrative Review Tribunal Act 2024, an application to the Administrative Review Tribunal must be made within the period: (a) beginning on the day on which the decision is taken to be made; and (b) ending 28 days after the day on which the decision is taken to be made.
30E(4)
(Repealed by No 39 of 2024)
An R&D entity's registration under section 27A for an income year has no effect to the extent that the registration is for an activity conducted during a period that the R&D entity is a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity.
Example:
If an activity is conducted by the R&D entity during all of an income year, and part way through the income year the R&D entity becomes a subsidiary member of a consolidated group:
(a) the R&D entity can apply to be registered for the activity for the income year, and that registration will be effective in respect of the first part of the income year; and (b) the head company of the group can apply to be registered for the activity for the income year in respect of the second part of the income year.
31(2)
If:
(a) a finding is made under this Part on application by an R&D entity that is a subsidiary member of a consolidated group or MEC group; and
(b) the head company of the group is also an R&D entity;
the finding has no effect to the extent that the finding is for an activity conducted during a period that the R&D entity is a subsidiary member of the group.
SECTION 31A
WHAT HAPPENS TO FINDINGS IF R&D ENTITY JOINS A GROUP
31A(1)
If a finding (the actual finding ) under this Part:
(a) is in force for an R&D entity immediately before the time (the joining time ) it becomes a subsidiary member of a consolidated group or MEC group, of which the head company is an R&D entity; and
(b) is for an activity to be conducted wholly or partly after the joining time;
a corresponding finding (the deemed finding ) in the same terms is taken to come into force at the joining time for the head company and the activity.
31A(2)
The deemed finding ceases to be in force if the R&D entity ceases to be a subsidiary member of the group.
31A(3)
The result of any review (see Division 5) of an actual finding is taken to apply in a corresponding way to the deemed finding.
31A(4)
Neither section 28F (notice of decision about findings) nor Division 5 (review) applies to the deemed finding.
The consequences in subsection (2) apply if a finding (the group finding ) under this Part: (a) is for an R&D entity that is the head company of a consolidated group or MEC group; and (b) is in force immediately before the time (the leaving time ) another R&D entity ceases to be a subsidiary member of the group; and (c) is for an activity to be conducted by or for the other R&D entity wholly or partly after the leaving time; and (d) is not a deemed finding.
31B(2)
The consequences are as follows: (a) a corresponding finding (the continuing finding ) in the same terms is taken to come into force at the leaving time for the other R&D entity and the activity; (b) everything that happened under this Part before the leaving time in relation to the group finding is taken to have happened in relation to the continuing finding; (c) the group finding ceases to be in force at the leaving time.
On its own initiative, the Board may, by notifiable instrument, make a determination about the circumstances or way in which the Board will exercise any of its powers, or perform any of its functions or duties, under this Part (except this Division).
31D(2)
The determination must not relate to the exercise of powers, or the performance of functions or duties, in a particular case or in relation to a particular entity.
31D(3)
The Board must exercise its powers, and perform its functions and duties, under this Part (except section 30D and this Division) in accordance with the determination.
Note:
Section 30D is about the Board reviewing a reviewable decision.
31D(4)
The determination has no effect to the extent of any inconsistency with this Act, the regulations or the decision-making principles.
Note:
The Board must revoke or amend the determination to remove any inconsistency: see section 31E.
This section applies to a determination made under section 31D if: (a) as a result of reviewing under section 30D a reviewable decision that was made in accordance with the determination because of section 31D, the Board is satisfied that the determination is incorrect; or (b) the determination is inconsistent with:
(i) a decision of a court; or
(ii) a decision of the Administrative Review Tribunal on review of an internal review decision relating to a reviewable decision that was made in accordance with the determination because of section 31D; or
(iii) this Act, the regulations or the decision-making principles.
31E(2)
The Board must, by notifiable instrument, revoke the determination or amend it so it is no longer incorrect or inconsistent.
31E(3)
This section does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to the power to make a determination under section 31D of this Act.
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 provides that a power to make an instrument includes the power to revoke or vary the instrument.
This section applies if a provision of this Part requires a thing to be in the approved form.
32(2)
To be in the approved form for the provision, the thing must:
(a) be in writing in a form approved by the Board; and
(b) include the information required by the form; and
(c) includes any other material (including documents) required by the form.
32(3)
The Board may approve, in writing, a form for the purposes of paragraph (2)(a). When doing so, the Board must ensure the form requires the production of information, or other material (including documents), specified in regulations made for the purposes of this subsection.
Note:
For specification by class, see subsection 13(3) of the Legislation Act 2003.
The Minister may, by legislative instrument, make principles (the decision-making principles ) that the Board must comply with when deciding the following:
(a) whether to allow a thing to be given under this Part within a further period than that specified in this Part;
(b) whether refusing to make a finding sought under this Part is justified;
(c) whether making a variation sought under section 27M is justified.
A finding made under this Part in relation to an R&D entity has no effect to the extent of any inconsistency with a finding already in force under this Part in relation to the R&D entity.
Example:
A finding under subsection 27J(1) in relation to an R&D entity's registration has no effect to the extent of any inconsistency with:
(a) a finding already in force under that subsection in relation to that registration; or (b) a finding already in force under subsection 27B(1) in relation to the application for that registration; or (c) a finding already in force under subsection 28A(1) (advance findings about the nature of activities) in relation to the R&D entity.
32B(2)
Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to the power to make a finding under this Part.
Note:
This means the power to make a finding does not itself include the power to vary or revoke that finding. A finding can only be varied or revoked on review under Division 5.
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a) subsection (2) had not been enacted; and
(b) each reference in this Part to an R&D entity were, by express provision, confined to an R&D entity that:
(i) is a constitutional corporation; or
(ii) has its registered office (within the meaning of the Corporations Act 2001) or principal place of business (within the meaning of that Act) located in a Territory.
32C(2)
Without limiting its effect apart from this subsection, this Part also has the effect it would have if:
(a) subsection (1) had not been enacted; and
(b) this Part, by express provision, confined applications, registrations, findings and decisions under this Part to be in relation to activities, or parts of activities, conducted or to be conducted:
(i) solely in a Territory; or
(ii) solely outside of Australia; or
(iii) solely in a Territory and outside of Australia; or
(iv) for the dominant purpose of supporting core R&D activities conducted, or to be conducted, solely in a Territory.
The Minister may, by legislative instrument, prescribe one or more programs in relation to industry, innovation, science or research, including in relation to the expenditure of Commonwealth money under such programs.
33(2)
A program may only be prescribed under subsection (1): (a) to the extent that it is with respect to one or more legislative powers of the Parliament; and (b) if it is not a program to subsidise the extraction of coal or natural gas.
33(3)
The legislative instrument must specify the legislative power or powers of the Parliament in respect of which the instrument is made.
33(4)
The legislative instrument may make provision in relation to: (a) a description of the program; or (b) the purpose of the program; or (c) eligibility criteria relating to the program; or (d) a process for making applications in relation to the program; or (e) whether application fees are payable in relation to the program.
33(5)
Subsections (3) and (4) do not limit subsection (1).
33(6)
The Minister may, by writing, delegate to another Minister, the Minister's power under subsection (1).
33(7)
In performing functions and exercising powers under the delegation, the delegate must comply with any directions of the Minister.
The Commonwealth may make, vary or administer an arrangement:
(a) in relation to the carrying out of activities by a person under a program prescribed by legislative instrument under subsection 33(1); and
(b) for money to be payable by the Commonwealth to the person for that purpose.
34(2)
The power conferred on the Commonwealth by subsection (1) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate Commonwealth entity.
Note:
For the power to delegate, see section 36.
34(3)
In this section:
administer
an arrangement includes give effect to.
arrangement
includes contract, agreement or deed.
make
an arrangement includes enter into.
(a) vary in accordance with the terms or conditions of the arrangement; or
(b) vary with the consent of the non-Commonwealth party or parties to the arrangement.
If a party to an arrangement under section 34 is a State or Territory:
(a) the terms and conditions on which money may be payable by the Commonwealth under the arrangement must be set out in a written agreement between the Commonwealth and the State or Territory; and
(b) the State or Territory must comply with the terms and conditions.
35(2)
If a party to an arrangement under section 34 is a corporation to which paragraph 51(xx) of the Constitution applies:
(a) the terms and conditions on which money may be payable by the Commonwealth under the arrangement must be set out in a written agreement between the Commonwealth and the corporation; and
(b) the corporation must comply with the terms and conditions.
35(3)
Without limiting subsection (2), the terms and conditions must provide for the circumstances in which the corporation must repay amounts to the Commonwealth.
35(4)
An agreement under subsection (1) or (2) may be entered into on behalf of the Commonwealth by a Minister or an accountable authority of a non-corporate Commonwealth entity.
Note:
For the power to delegate, see section 36.
35(5)
This section does not, by implication, prevent an arrangement under section 34 between the Commonwealth and a person other than a State or Territory or a corporation to which paragraph 51(xx) of the Constitution applies from being made subject to terms and conditions.
Delegation by a Minister
36(1)
A Minister may, by writing, delegate any or all of his or her powers under section 34 or 35 to an official of any non-corporate Commonwealth entity.
36(2)
In exercising powers under a delegation, the delegate must comply with any directions of the Minister concerned.
Delegation by an accountable authority
36(3)
An accountable authority of a non-corporate Commonwealth entity may, by writing, delegate any or all of his or her powers under section 34 or 35 to an official of any non-corporate Commonwealth entity.
36(4)
In exercising powers under a delegation, the delegate must comply with any directions of the accountable authority concerned.
Section 23 of the Public Governance, Performance and Accountability Act 2013 (which deals with the power of accountable authorities in relation to arrangements and commitments) does not authorise the accountable authority of a non-corporate Commonwealth entity to exercise, on behalf of the Commonwealth, a power conferred on the Commonwealth by section 33 of this Act.
(Repealed by No 27 of 2024)
SECTION 38 38 EXECUTIVE POWER OF THE COMMONWEALTH
This Part does not, by implication, limit the executive power of the Commonwealth.
(Repealed by No 137 of 2000)
44(2)
(Repealed by No 137 of 2000)
44(3)
(Repealed by No 137 of 2000)
44(4)
(Repealed by No 137 of 2000)
44(5)
(Repealed by No 137 of 2000)
44(6)
A person shall not be convicted of both an offence against section 135.2 of the Criminal Code and an offence against section 136.1, 137.1 or 137.2 of the Criminal Code in respect of the same application for:
(a) the expenditure of Commonwealth money under a program to which this Act relates; or
(b) an advance in respect of money that may be paid under such a program.
44(7)
A reference in subsection (6) to a person being convicted of an offence includes a reference to an order being made under section 19B of the Crimes Act 1914 in relation to the person in respect of an offence.
44(8)
(Repealed by No 137 of 2000)
44(9)
(Repealed by No 137 of 2000)
44(10)
(Repealed by No 137 of 2000)
44(11)
(Repealed by No 15 of 2004)
SECTION 45 45 TIME FOR PROSECUTIONS
Notwithstanding anything in any other law, proceedings for an offence against this Act may be instituted within the period of 3 years after the commission of the offence. SECTION 46 46 ANNUAL REPORT
The Board must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on its operations during that year.
Note:
See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.
An official to whom this section applies must not, unless required or permitted by law to do so, disclose protected information to a person if disclosing of the protected information would constitute a breach of confidence.
47(2)
An official to whom this section applies may disclose protected information to: (a) the Minister; or (aa) a person employed by the Minister under the Members of Parliament (Staff) Act 1984; or (b) the Secretary of the Department; or (c) an officer of the Department designated in writing by the Secretary of the Department as being an officer who is to receive information under this Act.
47(2A)
An official to whom this section applies may disclose protected information if the disclosure is made: (a) in the course of performing a duty or function, or exercising a power, under this Act; or (b) for the purposes of enabling another person to perform duties or functions, or exercise powers, under this Act; or (c) for the purposes of enabling a person to perform duties or functions, or exercise powers, under the Census and Statistics Act 1905 or the Income Tax Assessment Act 1997.
47(3)
In this section:
disclose
means divulge or communicate.
officer of the Department
includes a consultant or other person providing services to the Department.
official to whom this section applies
means the following:
(a) the Board;
(b) a person who is or has been a member of the Board;
(c) a committee;
(d) a person who is or has been a member of a committee;
(e) a person who is or has been a member of the staff assisting the Board or a committee (see section 25);
(f) a person who is or has been a consultant assisting the Board or a committee (see section 25);
(g) a person who was a member, or an acting member, of the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007);
(h) a person who was a member of the staff assisting the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007);
(i) a person who was a consultant assisting the former Industry Research and Development Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007).
protected information
means information that relates to a matter covered by Part III of this Act.
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. SECTION 48A FEES FOR MAKING APPLICATIONS 48A(1)
The Minister may, by legislative instrument, prescribe fees, or a method of working out fees:
(a) for making applications to the Board under Part III; or
(b) for the purposes of paragraph 33(4)(e).
48A(2)
The fees must not be such as to amount to taxation.