|
Navigation: Previous Page | Contents | Next Page
Export
Market Development Grants Amendment Bill 2014
Portfolio: Trade and investment
Introduced: House of Representatives,
6 March 2014 Summary of committee
concerns
1.29
The committee
seeks further information regarding the power of the CEO of Austrade to exclude
an export market development grants consultant (EMDG consultant), where the CEO
has formed the opinion that the EMDG consultant is not a fit and proper person. Overview
1.30
This bill seeks
to amend the Export Market Development Grants Act 1997 to:
- align the Export
Market Development Grants (EMDG) scheme rules with a revised level of scheme
funding;
- increase the
number of grants able to be received by an applicant from seven to eight;
- reduce the
minimum expenses threshold required to be incurred by an applicant from $20 000
to $15 000;
- reduce the
current $5000 deduction from the applicant's provisional grant amount to $2500
-
prevent the payment
of grants to applicants engaging an EMDG consultant assessed to be a not fit
and proper person; and
- enable a grant
to be paid more quickly where a grant is determined before the 1 July following
the balance distribution date.
Compatibility with human
rights
Statement
of compatibility
1.31
The bill is
accompanied by a brief statement of compatibility, which states:
This Bill is
compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. This Bill is compatible with human
rights as it does not raise any human rights issues.[1]
1.32
The committee
notes that the statement of compatibility does not meet the committee's
expectations. The committee expects statements of compatibility to read as
self-contained documents and to include a description of the purpose and effect
of the instrument.
1.33
The
committee intends to write to the Minister for Trade and Investment in an
advisory capacity in relation to the committee's expectations for statements of
compatibility.
1.34
The committee
also notes that the statement of compatibility concludes that the bill does not
raise any human rights issues. However, the committee considers that this bill
engages the right to privacy.[2]
The committee's concerns are set out below. Committee view on
compatibility
Right
to privacy and reputation
1.35
The right to
privacy provides that no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.[3]
1.36
The committee
has previously expressed the view that the right to privacy and reputation may
extend to the protection of the professional and business reputation of a
person.[4]
The proposed power to determine that a person is not a 'fit and proper person'
for the purposes of the Act therefore engages this right, insofar as such a
finding may damage or encroach on a person's professional reputation as an EMDG
consultant.
1.37
Where a bill provides
for the limitation of the right to privacy and reputation, as in this case, the
committee's usual expectation is that the statement of compatibility provide an
assessment of whether the limitation is to be imposed in pursuit of a
legitimate objective, and whether it is both necessary and proportionate to
achieving that objective. This assessment will generally need to provide
details of any less intrusive policy measures considered, as well as all
relevant procedural and other safeguards intended to apply to the proposed
measure.
1.38
The committee
notes that the explanatory memorandum for the bill provides a description of
the intended operation of the proposed fit and proper person test in relation
to EMDG consultants,[5]
including that:
- criteria for
determining whether a person or an associate of the person is not a fit and
proper person, and whether a person is an associate of an EMDG consultant, will
be prescribed by legislative instrument (and based on the current Export Market
Development Grants (Associate and Fit and Proper Person) Guidelines 2004);
- the CEO of
Austrade will be able to seek relevant information from a person or their
associate to assist in forming an opinion as to whether a person is not a fit
and proper person;
- an excluded EMDG
consultant may apply for the revocation of a determination that they are not a
fit and proper person (known as administrative review); and
- an excluded EMDG
consultant may also apply to have the decision reviewed by the Administrative
Appeals Tribunal (known as merits review).
1.39
The committee
notes that these aspects of the bill appear relevant to an assessment of the bill's
compatibility with the right to privacy and reputation. However, as the
statement of compatibility does not assess the bill's compatibility with the
right to privacy and reputation, the committee is unable to form a view on the
bill's overall compatibility with human rights.
1.40
The committee further
notes that concerns in relation to the operation of the fit and proper person
test were raised in its consideration of the earlier and related Export Market
Development Grants Amendment Bill 2013,[6]
which established the test as a basis for non-payment of a grant to person or
an associate of the person.[7]
The current bill effectively seeks to extend the application of the test to
EMDG consultants in their own right (such as in circumstances where an EMDG
consultant engages in false or misleading behaviour).[8]
1.41
The
committee intends to write to the Minister for Trade and Investment to seek
further information on the compatibility of the bill with the right to privacy
and reputation, particularly the justification for the fit and proper person
measure, including:
- whether it is
to be imposed in pursuit of a legitimate objective;
- whether it is
both necessary and proportionate to achieving that objective, including all
relevant procedural and other safeguards; and
- details of
any less intrusive policy measures that may have been available or were considered
in the development of this measure.
Navigation: Previous Page | Contents | Next Page
Top
|