Australian Trade Commission Act 1985

Act No. 186 of 1985 as amended

This compilation was prepared on 2 July 2008
taking into account amendments up to Act No. 33 of 2008

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

Contents

Part 1—Preliminary

1 Short title [see Note 1]

2 Commencement [see Note 1]

3 Interpretation

4 Extension to Territories

5 Application of Act outside Australia

6 Application of Export Market Development Grants Act 1997 not affected

6A Application of the Criminal Code

Part 2—Establishment and function of the Australian Trade Commission

7 Australian Trade Commission

Part 3—Establishment and functions of the CEO

7A Function of the Australian Trade Commission

7B The Chief Executive Officer

8 Functions of the CEO

9 Duties

9A Overseas exercise of CEO’s powers

9B CEO may charge fees

10 Power of Minister to give directions

Part 6—CEO and staff

Division 1—Chief Executive Officer

51 Appointment of Chief Executive Officer

52 Appointment to be full‑time

54 Remuneration and allowances

55 CEO not to engage in paid employment

56 Acting CEO

57 Leave of absence

58 Resignation

59 Termination

Division 2—Staff of the Commission

60 Staff of the Commission

61 Locally engaged employees

62 Consultants

Part 7—Corporate plans

64 CEO to develop corporate plans

65 Approval of corporate plans

66 Variation of corporate plans

Part 9—Miscellaneous

90 Delegations by Minister and CEO

92 Annual reports

94 Secrecy

97 Regulations

Notes

An Act to establish an Australian Trade Commission for the purpose of facilitating and promoting trade between Australia and foreign countries, and for related purposes

Part 1—Preliminary

1  Short title [see Note 1]

  This Act may be cited as the Australian Trade Commission Act 1985.

2  Commencement [see Note 1]

 (1) Sections 1, 2, 3 and 97 shall come into operation on the day on which this Act receives the Royal Assent.

 (2) The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation.

3  Interpretation

 (1) In this Act:

Australia includes the Territories to which this Act extends.

Australian organisation means:

 (a) any of the following entities carrying on a business in Australia:

 (i) a natural person;

 (ii) a partnership;

 (iii) a company incorporated or formed in Australia; or

 (b) an authority or body (including a body corporate and a corporation sole):

 (i) established for a purpose of the Commonwealth by, or in accordance with the provisions of, a law of the Commonwealth or of the Australian Capital Territory; or

 (ii) established for a purpose of a State by, or in accordance with the provisions of, a law of the State;

  and includes an Agency (within the meaning of the Public Service Act 1999) and a Department of the Public Service of a State, but does not include the Commission.

CEO means the Chief Executive Officer referred to in section 7B.

Commission means the Australian Trade Commission established by section 7.

corporate plan means a plan developed by the CEO in accordance with section 64, and includes such a plan as varied in accordance with section 66.

Department of State, in relation to the Northern Territory, means a Department of that Territory.

overseas development project means a project by way of:

 (a) the construction of works; or

 (b) the provision of services; or

 (c) the design, supply or installation of equipment or facilities; or

 (d) the testing in the field of agricultural practices;

(including any necessary preliminary studies, investigations or planning) that is to be carried out in a foreign country.

State includes the Northern Territory.

 (2) In this Act, a reference to trade between Australia and foreign countries includes a reference to any transaction (including the rendering of a service) involving a consideration in money or money’s worth accruing from a person in the course of carrying on business or other activities outside Australia to a person carrying on business or other activities in Australia.

 (4) Unless the contrary intention appears, a reference in this Act to the Export Market Development Grants Act 1997 includes a reference to the Export Market Development Grants Act 1974 to the extent that that Act continues to apply because of item 2 of Schedule 1 to the Export Market Development Grants (Repeal and Consequential Provisions) Act 1997.

 (5) In any other Act, a reference to an employee of the Australian Trade Commission is a reference to a person engaged by the CEO under section 74 of the Public Service Act 1999.

4  Extension to Territories

 (1) Subject to subsection (2), this Act extends to all the Territories.

 (2) The Minister may, by notice published in the Gazette, declare that, on a day specified in the notice, this Act ceases to extend to an external Territory specified in the notice, and, where such a notice is published:

 (a) this Act does not, on or after that day, extend to the Territory so specified;

 (b) a reference in this Act to a Territory does not, on or after that day, include a reference to the Territory so specified; and

 (c) the Territory so specified shall, on and after that day, be deemed, for the purposes of this Act, to be a foreign country.

5  Application of Act outside Australia

  This Act applies both within and outside Australia.

6  Application of Export Market Development Grants Act 1997 not affected

  Nothing in section 4 or 5 shall be taken to affect the application of the Export Market Development Grants Act 1997.

6A  Application of the Criminal Code

  Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Part 2—Establishment and function of the Australian Trade Commission

7  Australian Trade Commission

 (1) There is established by this Act a Commission by the name of the Australian Trade Commission.

 (2) The Commission consists of:

 (a) the CEO; and

 (b) the staff of the Commission referred to in section 60.

Part 3—Establishment and functions of the CEO

7A  Function of the Australian Trade Commission

  The function of the Commission (other than the CEO) is to assist the CEO in the performance of his or her functions.

7B  The Chief Executive Officer

  There is to be a Chief Executive Officer of the Commission.

Note: For the appointment, terms and conditions of the CEO, see Division 1 of Part 6.

8  Functions of the CEO

  The functions of the CEO are:

 (a) to facilitate and encourage trade between Australia and foreign countries (in this section referred to as Australian export trade) by:

 (i) representing the trading and commercial interests of Australia in foreign countries;

 (ii) assisting, directly or indirectly, Australian organisations in trade negotiations;

 (iii) promoting, or participating in or co‑ordinating projects to promote, Australian export trade;

 (iv) obtaining, and making available to Australian organisations, information relating to current or future opportunities for Australian export trade, including opportunities for involvement in overseas development projects;

 (v) supporting and facilitating investment in foreign countries, and facilitating investment in Australia, where that investment is likely to enhance opportunities for Australian export trade;

 (vi) carrying out, or assisting other persons to carry out, or participating with other persons in carrying out, in whole or in part, overseas development projects, in circumstances where that course of action will benefit Australian organisations;

 (viii) administering the Export Market Development Grants Act 1997;

 (ix) developing and administering schemes to provide assistance in the development of markets in foreign countries; and

 (x) facilitating access by persons to Departments of State of the Commonwealth or of a State and to instrumentalities established by or under a law of the Commonwealth or of a State where that access is likely to enhance opportunities for Australian export trade; and

 (b) to do any other act or thing required or permitted by:

 (i) this Act; or

 (ii) any other Act; or

 (iii) an instrument under an Act;

  to be done by the CEO; and

 (c) to act, outside Australia, as agent for Departments of State of the Commonwealth or for instrumentalities established by or under a law of the Commonwealth.

9  Duties

 (1) The CEO must perform his or her functions in such a manner as will best assist in the development of trade between Australia and foreign countries.

 (2) In performing his or her functions, the CEO must:

 (a) comply with any directions given to the CEO under section 10; and

 (b) have regard to:

 (i) the desirability of improving and extending the range and accessibility of advice, assistance and financial support available (whether through the Commission and the CEO or otherwise) to persons involved, or likely to be involved, either directly or indirectly, in trade between Australia and foreign countries;

 (ii) the need to provide services as efficiently and economically as possible; and

 (iii) Australia’s obligations under international agreements.

9A  Overseas exercise of CEO’s powers

  The powers of the CEO may be exercised, on behalf of the Commonwealth, in Australia or elsewhere.

9B  CEO may charge fees

  The CEO may charge fees for the provision of services, or the performance of other work, in connection with the performance of his or her functions under this Act.

10  Power of Minister to give directions

 (1) The Minister may give to the CEO, in writing, such directions with respect to the performance of his or her functions, and the exercise of his or her powers, under this Act, as appear to the Minister to be necessary.

Note: A direction under this section is included in the annual report: see section 92.

 (3) Nothing in subsection (1) shall be construed as empowering the Minister to determine that the CEO should deal in a particular manner with a particular person, or with a particular claim or application for a grant or other benefit, under the Export Market Development Grants Act 1997.

 (4) A direction of the Minister under this section shall not operate so as to affect prejudicially an application under the Export Market Development Grants Act 1997 in relation to a grant year (within the meaning of that Act) that commenced before the day on which the direction was given.

 (5) This section does not affect the operation of any other provision of this Act or of any other Act that confers a power upon the Minister to give directions to the CEO.

 (6) A direction under this section is not a legislative instrument.

Part 6—CEO and staff

Division 1—Chief Executive Officer

51  Appointment of Chief Executive Officer

 (1) The CEO is to be appointed by the Minister by written instrument.

 (2) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

 (3) An appointment under this section is not ineffective merely because of a defect or irregularity in relation to the appointment.

Terms and conditions

 (4) The CEO holds office on the terms and conditions (if any) in respect of matters not provided for by this Act that are determined by the Minister.

52  Appointment to be full‑time

  The CEO holds office on a full‑time basis.

54  Remuneration and allowances

 (1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed.

 (2) The CEO is to be paid the allowances that are prescribed.

 (3) This section has effect subject to the Remuneration Tribunal Act 1973.

55  CEO not to engage in paid employment

  The CEO must not engage in paid employment outside the duties of his or her office except with the Minister’s approval.

56  Acting CEO

 (1) The Minister may appoint a person to act as the CEO:

 (a) during a vacancy in the office of the CEO (whether or not an appointment has previously been made to the office); or

 (b) during any period, or during all periods, when the CEO is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: Section 33A of the Acts Interpretation Act 1901 contains provisions relating to acting appointments.

 (2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

 (a) the occasion for the appointment had not arisen; or

 (b) there was a defect or irregularity in connection with the appointment; or

 (c) the appointment had ceased to have effect; or

 (d) the occasion to act had not arisen or had ceased.

57  Leave of absence

 (1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.

 (2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

58  Resignation

  The CEO may resign from office by giving the Minister a written resignation that has been signed by the CEO.

59  Termination

 (1) The Minister may terminate the appointment of the CEO for misbehaviour or physical or mental incapacity.

 (2) The Minister may terminate the appointment of the CEO if:

 (a) the CEO:

 (i) becomes bankrupt; or

 (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

 (iii) compounds with his or her creditors; or

 (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

 (b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

 (c) the CEO engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.

 (3) The Minister must terminate the appointment of the CEO if, in the Minister’s opinion, the performance of the CEO has been unsatisfactory for a significant period of time.

Division 2—Staff of the Commission

60  Staff of the Commission

 (1) The staff of the Commission are to be persons engaged under the Public Service Act 1999.

 (2) For the purposes of the Public Service Act 1999:

 (a) the CEO and the staff of the Commission together constitute a Statutory Agency; and

 (b) the CEO is the Head of that Statutory Agency.

61  Locally engaged employees

  To avoid doubt, the CEO may, under section 74 of the Public Service Act 1999, engage persons overseas to perform duties overseas as employees.

62  Consultants

  The CEO may, on behalf of the Commonwealth, engage consultants to perform services for the CEO related to the CEO’s functions.

Part 7—Corporate plans

64  CEO to develop corporate plans

 (1) The CEO must develop, and prepare in written form, a corporate plan, for the period specified in the plan, that:

 (a) defines the principal objectives of the CEO in performing his or her functions during that period; and

 (b) gives a broad outline of the strategies to be pursued by the CEO to achieve those objectives.

 (2) A corporate plan prepared in accordance with this Part shall, in addition to the matters referred to in subsection (1), specify, in broad terms, in relation to each financial year to which the plan relates, the resources that are to be applied during that financial year to achieve the objectives set out in that plan.

65  Approval of corporate plans

 (1) Each corporate plan shall be submitted to the Minister for approval before the intended day of commencement of the period to which the corporate plan relates and shall not come into force until:

 (a) the day on which it is approved by the Minister; or

 (b) the day of commencement of the period to which it relates;

whichever is the later.

 (2) Upon the coming into force of a corporate plan under subsection (1), any corporate plan that is already in force ceases to be in force.

66  Variation of corporate plans

 (1) The CEO may, at any time, review a corporate plan, whether or not it has come into force, and consider whether a variation to the plan is necessary.

 (2) The CEO may, with the approval of the Minister, vary a corporate plan.

 (3) The Minister may, at any time, request the CEO to vary a corporate plan, whether or not it has come into force.

 (4) Where the Minister requests a variation of a corporate plan, the CEO shall, with the approval of the Minister, vary that plan accordingly.

 (5) Where a variation of a corporate plan is approved by the Minister after the plan has come into force, the plan as so varied shall continue in force on and after the day on which the variation is so approved.

Part 9—Miscellaneous

90  Delegations by Minister and CEO

 (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by signed writing, delegate to the CEO all or any of the functions and powers of the Minister:

 (a) under this Act (other than this power of delegation or the Minister’s powers under sections 65 and 66); and

 (b) under the Export Market Development Grants Act 1997.

 (2) The CEO may, either generally or as otherwise provided in the instrument of delegation, by signed writing, delegate all or any of his or her functions and powers under this Act or the Export Market Development Grants Act 1997 (other than this power of delegation) to a member of the staff of the Commission referred to in section 60.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

92  Annual reports

 (1) The CEO must, as soon as practicable after 30 June in each financial year, prepare and give to the Minister a report on the Commission’s operations during that financial year.

Note: Section 34C of the Acts Interpretation Act 1901 contains provisions relating to annual reports.

 (2) A report under subsection (1) must include the following:

 (a) information about the Commission’s operations under the Export Market Development Grants Act 1997;

 (b) particulars of all directions given by the Minister to the CEO under subsection 10(1), other than any direction that includes a statement to the effect that the direction is not to be disclosed:

 (i) for reasons of national security; or

 (ii) because its disclosure would have an adverse effect on the financial interests or property interests of the Commonwealth or of an instrumentality of the Commonwealth.

 (3) The Minister must cause a copy of each annual report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

94  Secrecy

 (1) This section applies to a person who is or has been:

 (a) the CEO; or

 (b) a member of the staff of the Commission referred to in section 60; or

 (c) a consultant engaged under section 62.

 (2) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act:

 (a) make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first‑mentioned person by reason of his or her employment; or

 (b) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty: $2,000 or imprisonment for 1 year, or both.

 (3) Subsection (2) does not apply to the disclosure of information, or the production of a document, to the Minister, to the Secretary to the Department, or to an officer of the Department designated by the Secretary.

 (4) Subsection (2) does not prevent a person to whom this section applies from communicating, or making available to another person:

 (b) the following information relating to payments of grants authorised by the CEO under the Export Market Development Grants Act 1997 or the Export Market Development Grants Act 1974:

 (i) the name and address of a person to whom the CEO has authorised a payment;

 (ii) the amount of a grant to a person;

 (iii) the industry to which a grant relates; and

 (c) any information of a statistical nature relating to the making of grants under the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.

 (5) A person to whom this section applies shall not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of, or of a prosecution for an offence against, this Act, the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.

 (6) A person to whom information is communicated under subsection (3) and an employee or other person under that person’s control are, in respect of that information, entitled to rights and privileges, and subject to obligations and liabilities, under subsections (2) and (5) as if they were persons referred to in subsection (1).

 (7) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes to permit access to.

97  Regulations

  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:

 (a) required or permitted by this Act to be prescribed; or

 (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and in particular:

 (d) prescribing penalties, not exceeding a fine of $500, for offences against the regulations.

Notes to the Australian Trade Commission Act 1985

Note 1

The Australian Trade Commission Act 1985 as shown in this compilation comprises Act No. 186, 1985 amended as indicated in the Tables below.

For application, saving or transitional provisions made by the Australian Trade Commission Legislation Amendment Act 2006, see Act No. 56, 2006.

All relevant information pertaining to application, saving or transitional provisions prior to 24 November 2000 is not included in this compilation. For subsequent information see Table A.

Table of Acts

(a) The Australian Trade Commission Act 1985 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1986, subsection 2(1) of which provides as follows:

 (1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(b) The Australian Trade Commission Act 1985 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(1) of which provides as follows:

 (1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(c) The Australian Trade Commission Act 1985 was amended by Schedule 3 (item 65) only of the Tax Law Improvement Act 1997, subsections 2(2) and (3) of which provide as follows:

 (2) Schedule 1 commences on 1 July 1997 immediately after the commencement of the Income Tax Assessment Act 1997.

 (3) Each of the other Schedules (except Schedule 12) commences immediately after the commencement of the immediately preceding Schedule.

(d) The Australian Trade Commission Act 1985 was amended by Schedule 2 (items 533–541) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:

 (2) Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.

(e) The Australian Trade Commission Act 1985 was amended by Schedule 1 (items 270–272) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

 (1) In this Act, commencing time means the time when the Public Service Act 1999 commences.

 (2) Subject to this section, this Act commences at the commencing time.

(f) The Australian Trade Commission Act 1985 was amended by Schedule 10 (item 61) only of the Corporate Law Economic Reform Program Act 1999, subsection 2(2)(c) of which provides as follows:

 (2) The following provisions commence on a day or days to be fixed by Proclamation:

 (c) the items in Schedules 10, 11 and 12.

Table of Amendments

Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

 (a) an offence committed before the commencement of this item; or

 (b) proceedings for an offence alleged to have been committed before the commencement of this item; or

 (c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2) Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

 (a) a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

 (b) any or all of those other provisions are repealed by this Schedule; and

 (c) the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001 (No. 35, 2001)

4  Application of amendments

 (1) Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

 (2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001)

Schedule 1

97  Application of amendments

The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item.

Financial Framework Legislation Amendment Act 2005 (No. 8, 2005)

Schedule 2

174  Saving provision—provisions that formerly referred to the Treasurer

(1) Any thing that:

 (a) was done by the Treasurer, or by a delegate of the Treasurer, before the commencing time under an affected provision; and

 (b) was in effect immediately before the commencing time;

continues to have effect after the commencing time as if it had been done by the Finance Minister under the affected provision.

(2) In this item:

affected provision means a provision that is amended by an item in this Schedule so as to replace references to the Treasurer with references to the Finance Minister.

commencing time means the day this Act receives the Royal Assent.

Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997.