The Investment Promotion Authority is established by section 5 of the Investment Promotion Act 1992. Most people encounter it as the certifying body, but its statutory functions are wider.
Section 6 — the functions
(a) to provide information to investors in the country and overseas;
(b) to encourage and facilitate investment by assisting investors to obtain all necessary licences, compliances and approvals;
(c) to facilitate the introduction of citizens and foreign investors to each other and to activities of mutual benefit;
(d) to provide a system of certification of foreign enterprises and to require that a foreign enterprise may only carry on business if certified;
(da) to monitor the activities of foreign enterprises to determine whether they are certified and comply with the terms of their certificates;
(e) to advise the Minister on policy issues relating to the Act;
(f) to maintain a register of foreign investment opportunities;
(g) to facilitate citizen participation in investment and in the ownership of national and foreign enterprises;
(h) and (i) other functions given by law, and incidental acts.
Paragraphs (a) to (c) make the Authority a promoter of investment — an agency whose job is to attract investors and help them through the system.
Paragraphs (d) and (da) make it a regulator — the body that decides who may carry on business, on what terms, and whether they are complying.
Paragraph (g) adds a third role: facilitating citizen participation, which connects to the reserved activities regime in section 27 and to Part IVA.
Section 7 — powers, and the delay procedure
The Authority has, in addition to powers otherwise conferred, power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
This is one of the more practical provisions in the Act, and it is little used.
- Section 7(2). Where in the Minister’s opinion a State body has unduly delayed the issue, grant or consideration of a licence, compliance or approval, the Minister may refer the matter to the Minister responsible for that State body.
- Section 7(3). That Minister shall, within 30 days, provide a report on the reasons for the delay and the measures being taken to minimise further delay.
- Section 7(4). If further delay follows which the Minister considers unreasonable and unjustified, he may refer the matter to the National Executive Council, which shall consider it and give such direction as best gives effect to the purposes of the Act.
An investor held up by another agency — a permit, a lease, an approval — can therefore ask the Authority to take the matter to the Minister. The route runs from the Authority to the Minister to the responsible Minister, and ultimately to the NEC.
The mechanism is consistent with the section 6(b) function of assisting investors to obtain all necessary licences, compliances and approvals.
The Board and the Managing Director
| Section | Subject |
|---|---|
| s 8–9 | Establishment and membership of the Board |
| s 10–12 | Alternate members, Chairman and Deputy, leave of absence |
| s 13–14 | Vacation of office; a vacancy does not affect the Board’s powers |
| s 15 | Meetings of the Board |
| s 16 | Disclosure of interest by a member |
| s 17 | Committees |
| s 18 | Reports |
| s 19–20 | Appointment and functions of the Managing Director |
| s 21–23 | Staff and contracts of employment |
| s 24 | Funds of the Authority |
A Board member with an interest in a matter before the Board must disclose it. The obligation mirrors the duty on a company director to disclose an interest in a transaction under the Companies Act 1997.
It matters here because the Board decides applications by enterprises that may compete with businesses in which members have interests.
Section 41(4) gives the Managing Director a specific function in enforcement: a certificate purporting to be signed by the Managing Director, stating that a term of a certificate was not complied with, that an enterprise was carrying on business, or that a foreign enterprise was not certified, is prima facie evidence of that matter.
That reverses the ordinary burden of proving those facts in a prosecution.
The two registers
- The Register of Certificates — sections 30 and 31. It records every certificate issued and cancelled, is prima facie evidence of its contents, is open for inspection during normal business hours, and copies may be obtained on payment of the prescribed fee.
- The register of foreign investment opportunities — section 34, maintained under the section 6(f) function. It is the mechanism by which the Authority connects foreign investors with local opportunities, supporting the section 1(a) purpose of promoting and facilitating investment and the section 6(c) introduction function.
Section 35 separately requires the Authority to facilitate new investment.
Decisions and appeals
Decisions on certification are made by the Authority, and section 40 provides an appeal to the Minister — not to a court — from a refusal, objectionable terms, refusal of a variation, a suspension or cancellation notice, or a failure to decide within time.
The Authority is a public body exercising statutory power, so its decisions are also amenable to judicial review in the National Court on ordinary administrative law grounds.
Sources
- Investment Promotion Act 1992 — ss 5–24, 30, 31, 34, 35, 40, 41
- Companies Act 1997
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.