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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator N Xenophon)
CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011
1. Short Title
This clause is a formal provision and specifies the short title of Bill, once enacted, as the
Customs Amendment (Anti-Dumping) Act 2011.
2. Commencement
This clause provides for the commencement of Sections 1 to 4 of the Act the day the Act
receives the Royal Assent, and for Schedule 1 to commence the day after the Act receives
Royal Assent.
3. Schedule(s)
This clause states that each Act specified in a Schedule to this Act is amended or repealed
according to the provisions of this Act, according to its terms.
4. Review of operation of Part XVB of Customs Act as amended
Clause 4 requires the Minister to initiate an independent review within 2 years of the
operation of Part XVB of the Customs Act 1901 as amended.
The independent review will be conducted by at least three persons. These persons should
include those who the Minister considers to hold appropriate qualifications and those who
have substantial experience or knowledge in international trade and foreign affairs or
economics. The panel will not include any currently serving officers of Customs, however
Customs will, if requested, assist the panel in conducting the review and preparing the written
report.
The review will also include the opportunity for written submissions to be made by interested
parties and members of the public.
The review is to be provided to the Minister within 6 months after the end of the 2-year
period and must be tabled in each House of the Parliament within 15 sitting days of the
Minister receiving it.
Schedule 1 - Amendment of the Customs Act 1901
1. Items 1 and 2 inserts "trade union organisations, some of whose members are directly
concerned with the production or manufacture of like goods" into the definition of 'affected
parties' and 'interested parties' in Part XVB of this Act.
This is supported by Item 32 which inserts trade union organisations into the definition of
'interested parties' in Division 9 of Part XVB of the Act, which relates to reviews of dumping
decisions by the Review officer.
2. Items 3, 4 and 7 adds to sections 269TACB (which relates to establishing whether dumping
has occurred and levels of dumping) and 269TAG (where the Minister may take anti-
dumping measures on own initiative), and substitutes into 269TAE(2A) (which relates to
injury being caused or threatened by other factors) that, in instances where dumping has been
proven and material injury has been proven, a presumption exists whereby the material injury
is determined to be as a result of dumping.
3. Items 5 and 6 inserts into Section 269TAE of the Act consideration by the Minister of any
"impact on jobs" and any "impact on capital investment in the industry" as part of relevant
economic factors in relation to an Australian industry in determining whether or not material
injury is threatened.
4. Items 8 and 11 inserts requirements that the Application for Dumping and/or Countervailing
Duties form be a legislative instrument and allows supporting evidence provided to be as
recent as 90 days prior to the application being made to be submitted as well as other
information as prescribed by the regulations.
5. Item 11 also inserts provisions that the CEO have regard to any new or updated information
provided by an interested party that reasonably could not have been provided earlier, and to
consult with persons with expertise in the relevant industry.
6. Provisions for new and updated information to be provided during application, investigation
and review, that reasonably could not have been provided earlier by interested parties, and for
relevant industry experts to be consulted as part of any investigation and review is also
inserted into the Act through Items 16, 17, 18, 25, 26, 29, 30, 31, 33, 35, 38, 41, 42, 43, 44
and 45.
7. Items 9 and 10 repeals subsection 269TB(6) and inserts provisions which allow small
manufacturers whose individual production of like goods may not account for more than 50%
or less than 25% of the total production or manufacture of like goods in Australia to make
applications and, where a supporting application(s) has been independently lodged and the
cumulative production of these applicants accounts for at least 25% of total production or
manufacture of like goods in Australia, then the applications may be considered by the CEO
as per other applications received.
8. Item 12 inserts a provision for where the CEO does not reject an application, the importer of
the imported goods which are the subject of the application bears the onus of proving that the
imported goods have not been dumped or subsidised for export into Australia. Any material
lack of cooperation on the part of the importer of the imported goods would lead to a
presumption that the imported goods are dumped goods.
9. Item 13 removes the 60 day requirement before the CEO can make a preliminary affirmative
determination during an investigation and items 36 and 46 insert provisions for the Review
Officer to make affirmative decisions during a review, enabling interim duties to be collected.
10. Items 14 and 15 enables the CEO to forecast and consider potential impacts on the relevant
Australian industry and related industries, such as on employment (including the multiplier
effect - where a decrease in employment in one sector triggers further unemployment in
related sectors), capital investment and market operations, when deciding to make a
preliminary affirmative determination or in its statement of essential facts on which the CEO
proposes to base a recommendation to the Minister in relation to that application. It also
provides for relevant industry experts to be consulted as part of this consideration.
11. Items 19, 20, 21 and 22 repeals paragraphs of the Act relating to information provided to
assist the Minister which may be commercial-in-confidence (Paragraphs 269TG(3A),
269TH(4)(a) and (b), 269TJ(12)(c) and (d), 269K(6)(c) and (d) and 269X(3)(a) and requires
that that information is not be published in any way.
12. Item 23 repeals paragraph 269X(3)(a) and substitutes that, unless the person supplying
particular information has claimed the information is confidential or that it might adversely
affect the business or commercial interests of the person supplying the information, the
applicant may be provided a copy of information by the CEO by way of a summary which
allows a reasonable understanding of the information that will not breach confidentiality or
adversely affect the person supplying the information.
13. Item 24 inserts a requirement for relevant and related Australian industry experts to be
consulted by the CEO within 20 days of Customs receiving an application for review of anti-
dumping measures.
14. Item 27 inserts a requirement that the application form for the continuation of anti-dumping
measures be a legislative instrument and accompanied by other information as prescribed by
the regulations.
15. Item 28 inserts a requirement for relevant and related Australian industry experts to be
consulted by the CEO within 60 days of Customs receiving the application for continuation
of anti-dumping measures.
16. Item 34 inserts into the Act provision for applicants who, in making an application for a
review of a decision under subsection 269ZZE(2) may provide new or updated information
that reasonably could not have been provided earlier.
17. Item 37 relates to subsection 269ZZG(2) which states that nothing prevents the Review
Officer from seeking further particulars from an applicant, including new or updated
information that reasonably could not have been provided earlier.
18. Item 39 repeals subparagraph 269ZZL(2)(a)(i) and requires that the Minister, if they accept a
recommendation by the Review Officer to require the CEO to reinvestigate a finding or
findings, must, in writing, require the CEO to have regard to any new or updated information
that has been subsequently provided and which reasonably could not have been provided
earlier as part of its investigation.
19. Item 40 relates to applications made for a review and inserts that an applicant in application
for a review may provide new or updated information that could not have reasonably been
provided earlier.
20. Item 47 adds to subsection 273GA(1) a decision of the CEO, the Minister or the Review
Officer as subject to review by the Administrative Appeals Tribunal.
ADDITIONAL NOTES:
Clause 4 - Requires the Minister to cause an independent review of the first two years of this Part of the Act
(Part XVB), as amended.
- The Panel must consist of at least 3 persons who have appropriate qualifications and/or have
substantial experience or knowledge in international trade and foreign affairs or economics. It cannot
include a currently serving officer of Customs.
- Written submissions will be able to be made by interested parties and members of the public.
- The Independent Panel will have 6 months to report.
- The Minister must table the report within 15 sitting days in each House of Parliament.
Item 1 Subsection 269T(1) Includes trade union organisations, some of whose members are directly concerned with the
Insert production or manufacture of like goods, within the definition of `affected party'.
This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in
any investigation or review process to appropriately represent their members whose jobs may be at
risk as a result of dumped goods.
Item 2 Subsection 269T(1) Includes trade union organisations, some of whose members are directly concerned with the
Insert production or manufacture of like goods, within the definition of 'interested party'.
This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in
any investigation or review process to appropriately represent their members whose jobs may be at
risk as a result of dumped goods.
Item 3 Section 269TACB Allows that, where dumping has been proven and material injury has been proven, the presumption is
Add that the material injury is as a result of dumping rather than any other factor.
Item 4 Subsection 269TAE(2A) Allows that, where dumping has been proven and material injury has been proven, the presumption is
Repeal and substitute that the material injury is as a result of dumping.
Currently, this subsection lists other factors that can be considered by the Minister as the cause of
the injury, even though dumping has been proven to have occurred.
Item 5 Paragraph 269TAE(3)(h) Expands the consideration of economic factors by the Minister to include "impact on jobs".
Insert
Currently, this paragraph only states "the number of persons employed, and the level of wages paid
to persons employed, in the industry in relation to the production or manufacture of goods of that
kind or like goods".
Item 6 Paragraph 269TAE(3)(m) Expands the consideration of economic factors by the Minister to include "impact on capital
Insert investment".
Currently, this paragraph only states "the ability of persons engaged in the industry, to raise capital
in relation to the production or manufacture of goods of that kind, or like goods" and "investment in
the industry".
Item 7 Section 269TAG Allows that, where dumping has been proven and material injury has been proven, the presumption is
Add that the material injury is as a result of dumping rather than any other factor.
Item 8 Subsection 269TB(1) - Makes the Application for Dumping and/or Countervailing Duties form a Legislative Instrument.
Insert - Allows supporting evidence to be provided as part of the Application for Dumping and/or
Countervailing Duties to be as recent as 90 days prior to the application being made, as well as other
information as prescribed by the regulations.
Currently, the Application for Dumping and/or Countervailing Duties form does not specify a
minimum period for data provision. However, it states that "sufficient data must be provided to
substantiate the claims made. If yearly data is provided, this would typically comprise a period of at
least four years (for example the current financial year in addition to three prior years). Where
information is supplied for a shorter period, applicants may consider the use of quarterly data".
Stakeholders have advised that this extensive period of time for evidence to be collated means that
injury to their industry is already caused before any submission can be made.
Item 9 Subsection 269TB(6) Allows small manufacturers (whose individual production of like goods may not account for more
Repeal and substitute than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make
applications and, where a supporting application(s) has been independently lodged and the
cumulative production accounts is greater than 25% of the total production or manufacture of like
goods in Australia, then the applications may be considered by the CEO as per normal.
Some small manufacturers have advised that they do not feel comfortable liaising with other
manufacturers because they don't wish to share information, or they may not be aware of all of the
details, may not have the resources, or they may not want to draw attention to themselves, etc.
This amendment will enable the CEO to consider individual applications in cognate where the
cumulative total production is greater than 25%.
Item 10 Paragraph 269TC(4)(b) Allows small manufacturers (whose individual production of like goods may not account for more
Insert than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make
applications and, where a supporting application(s) has been independently lodged and the
cumulative production accounts is greater than 25% of the total production or manufacture of like
goods in Australia, then the applications may be considered by the CEO as per normal.
Some small manufacturers have advised that they do not feel comfortable liaising with other
manufacturers because they don't wish to share information, or they may not be aware of all of the
details, may not have the resources, or they may not want to draw attention to themselves, etc.
This amendment will enable the CEO to consider individual applications in cognate where the
cumulative total production is greater than 25%.
Item 11 Subsection 269TC(4) - Allows supporting evidence provided as part of the Application for Dumping and/or Countervailing
Insert Duties to be as recent as 90 days prior to the application, as well as other information as prescribed
by the regulations.
- Inserts a provision that the CEO may have regard to any new or updated information provided by an
interested party that reasonably could not have been provided earlier and to consult with persons with
expertise in the relevant industry.
Currently, the Application for Dumping and/or Countervailing Duties form does not specify a
minimum period for data provision. However, it states that "sufficient data must be provided to
substantiate the claims made. If yearly data is provided, this would typically comprise a period of at
least four years (for example the current financial year in addition to three prior years). Where
information is supplied for a shorter period, applicants may consider the use of quarterly data".
Stakeholders have advised that this extensive period of time for evidence to be collated means that
injury to their industry is already caused before any submission can be made.
Item 12 Section 269TC - Where the CEO accepts an application, this amendment provides that the importer of the imported
Insert goods which is the subject of the application bears the onus of proving that the goods have not been
dumped or are not subsidised for export into Australia.
- Any material lack of cooperation would lead to a presumption that the imported goods are dumped
goods.
Currently, local manufacturers are spending hundreds of thousands of dollars gathering evidence to
build a case. This will put the onus of proof on the alleged importer to prove that the goods are not
dumped. This is also intended to expedite the process.
Item 13 Subsection 269TD(1) Removes the 60 day requirement before the CEO can make a preliminary affirmative determination.
Omit
This means that securities can be collected from the importer of the alleged goods as soon as an
investigation has been initiated.
This is intended to protect local manufacturers while an investigation is ongoing, as investigations
can last up to 155 days, if not more, and so the application of duties on the alleged dumped goods
will ensure no injury is caused to local industry.
Item 14 Paragraph 269TD(2)(a) - Enables the CEO to forecast and consider potential impacts on the relevant and related Australian
Add industries, including but not limited to employment (including the multiplier effect - where a
decrease in employment in one sector triggers further unemployment in related sectors), capital
investment and market operations, when making a decision to apply a preliminary affirmative
determination.
- Provides for relevant industry experts to be consulted as part of this consideration.
Item 15 Paragraph 269TDAA(2)(a) - Enables the CEO to forecast and consider potential impacts on the relevant and related Australian
Add industries, including but not limited to employment (including the multiplier factor), capital
investment and market operations in its statement of essential facts.
- Provides for relevant industry experts to be consulted as part of this consideration.
Item 16 Subsection 269TE(2) Allows the CEO, if required to make a recommendation or decision normally made by the Minister,
Insert to consider new or updated information that reasonably could not have been provided earlier, and to
consult with persons with expertise in the relevant industry as part of any investigation and review.
Item 17 Paragraph 269TEA(3)(a) In deciding on the recommendations to be made to the Minister in the CEO's report, the CEO must
Add have regard to new or updated information that reasonably could not have been provided earlier, and
to consult with persons with expertise in the relevant industry.
Item 18 Subsection 269TEB(4) If an undertaking in revised terms is proposed to the CEO, the CEO must have regard to new or
Insert updated information that reasonably could not have been provided earlier, and to consult with
persons with expertise in the relevant industry as part of any investigation and review.
Item 19 Paragraphs 269TG(3A)(a) and Where a person has provided information to assist the Minister to ascertain values and prices relating
(b) to dumped goods, the Minister is not required to include this information in the dumping duties
Repeal and substitute notice or in any other way.
Currently, the subparagraph states that the CEO may notify persons who would be affected parties.
This removes this permission.
Item 20 Paragraphs 269TH(4)(a) and (b) With respect to third country dumping duties, where a person has provided information to assist the
Repeal and substitute Minister to ascertain values and prices relating to dumped goods, the Minister is not required to
include this information in the dumping duties notice or in any other way.
Currently, the subparagraph states that the CEO may notify persons who would be affected parties.
This removes this permission.
Item 21 Paragraphs 269TJ (12)(c) and With respect to countervailing duties, where a person has provided information to assist the Minister
(d) to ascertain values and prices relating to dumped goods, the Minister is not required to include this
Repeal and substitute information in the dumping duties notice or in any other way.
Currently, the subparagraph states that the CEO may notify persons who would be affected parties.
This removes this permission.
Item 22 Paragraphs 269TK(6)(c) and (d) With respect to third country countervailing duties, where a person has provided information to assist
Repeal and substitute the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to
include this information in the dumping duties notice or in any other way.
Currently, the subparagraph states that the CEO may notify persons who would be affected parties.
This removes this permission.
Item 23 Paragraph 269X(3)(a) - Where the CEO proposes to take into account any relevant information that was not supplied by the
Repeal and substitute applicant but by an alternate source, the CEO must give the applicant a copy of the information
unless it has been claimed by the supplier to be confidential.
- In this instance, the applicant may be provided a summary of the information in a form that allows
reasonable understanding of the information but which does not breach confidentiality or adversely
affect the interests of the provider of the information.
Currently, the applicant is provided the information unless the CEO believes it would adversely
affect the business or commercial interests of the provider of the information, and allows the
applicant to make a submission within 155 days in response.
Item 24 Subsection 269ZC(1) Inserts a requirement for relevant and related Australian industry experts to be consulted by the CEO
Insert within 20 days of Customs receiving an application for review of anti-dumping measures.
Currently there is no provision for experts to be consulted.
Item 25 Paragraph 269ZC(1)(b) Where an application for review of anti-dumping measures is lodged, this amendment requires if the
Repeal and substitute CEO is not satisfied, having regard to the application, any new or updated information that
reasonably could not have been provided earlier or any information from persons with expertise in
the relevant industry as part of consultations, then the CEO must reject the application.
Currently, the paragraph only requires that the CEO have regard to the application and other
information that the CEO considers relevant, it does refer to consultation with experts or new or
updated information.
Item 26 Paragraph 269ZD(2)(a) In formulating the statement of essential facts, this amendment allows the CEO to have regard to any
Add new or updated information that reasonably could not have been provided earlier, and to consult with
persons with expertise in the relevant industry as part of any investigation and review.
Currently, the paragraph only specifies the application and any submissions received by Customs
within 40 days after the publication of the notice.
Item 27 Subsection 269ZHC(1) Makes the Application for Continuation of a Dumping Duty and/or a Countervailing Duty Notice or
Insert Continuation of an Undertaking form a Legislative Instrument.
Item 28 Subsection 269ZHD(1) Inserts a requirement for persons with expertise in the relevant industry and related industries to be
Insert consulted by the CEO within 60 days of Customs receiving an application for continuation of anti-
dumping measures.
Currently, there is no provision for experts to be consulted.
Item 29 Paragraph 269ZHD(1)(b) Where an application for continuation of anti-dumping measures is lodged, this amendment requires
Repeal and substitute that if the CEO is not satisfied, having regard to the application, any new or updated information that
reasonably could not have been provided earlier or any information from persons with expertise in
the relevant industry as part of consultations, then the CEO must reject the application.
Currently, there is no reference to new or updated information or consultation with industry experts.
Item 30 Paragraph 269ZHE(2)(a) Provides that, in formulating the statement of essential facts, the CEO must also have regard to any
Add new or updated information that reasonably could not have been provided earlier, and any
information provided by persons with expertise in the relevant industry.
Item 31 Paragraph 269ZHF(3)(a) In deciding on the recommendations to be made to the Minister in the CEO's report, this amendment
Add requires the CEO to have regard to any new or updated information that reasonably could not have
been provided earlier, and to consult with persons with expertise in the relevant industry.
Item 32 Section 269ZX Includes trade union organisations, some of whose members are directly concerned with the
Insert production or manufacture of like goods, within the definition of 'interested party' in Division 9 of the
Act which relates to Review by a Review Officer.
Item 33 Subsection 269ZZ(1) Allows the Review Officer, if required to make a recommendation or decision normally made by the
Insert Minister to consider new or updated information that reasonably could not have been provided
earlier, and to consult with persons with expertise in the relevant industry as part of any investigation
and review.
Item 34 Subsection 269ZZE(2) Includes in this section which sets out the provisions for how an application for a review of a decision
Insert must be made, that an applicant may provide new or updated information to the Review Officer that
reasonably could not have been provided earlier.
Item 35 Section 269ZZE Inserts a provision for the Review Officer to consult with persons with expertise in the relevant
Insert industry and related industries in conducting its review.
Item 36 Section 269ZZF Inserts the provision for the Review officer to apply a Review Officer ministerial decision affirmative
Insert determination, which says that if the Review Officer is satisfied there are reasonable grounds to
reinvestigate a matter, the Review Officer must give public notice of that determination and Customs
may require and take securities in respect of interim duty that may become payable if the officer of
Customs is satisfied that it is necessary to do so to prevent material injury to industry.
This is intended to protect local manufacturers by applying securities to goods under review while
the review is being conducted.
Item 37 Subsection 269ZZG(2) Currently, the paragraph reads: "Nothing in subsection (1) prevents the Review Officer from seeking
Insert further particulars from an applicant within that period.
This amendment adds "including new or updated information that reasonably could not have been
provided earlier".
Item 38 Subsection 269ZZK(6) This amendment adds to the definition of 'relevant information' under a review by the Review
Add Officer, to include new or updated information to be that reasonably could not have been provided
earlier, and information and analysis provided by persons with expertise in the relevant industry or
related industries.
Item 39 Subparagraph 269ZZL(2)(a)(i) If the Minister accepts the recommendation from the Review Officer to require the CEO to
Repeal and substitute reinvestigate a finding or findings, this amendment requires that the Minister must, in writing, require
the CEO to make further investigation and have regard to the information from the Review Officer as
well as any new or updated information that is subsequently provided by an interested party that
reasonably could not have been provided earlier.
Item 40 Subsection 269ZZQ(1) Allows applicants for review to provide new or updated information that reasonably could not have
Insert been provided earlier.
Many stakeholders have advised that the Review Officer only looks at evidence provided during the
initial investigation and this limits their case. Rather, by being able to provide new or updated
information they may be able to further substantiate their case against the alleged dumped goods.
Item 41 Section 269ZZQ Inserts a provision that, in conducting a review, the Review officer must consult with persons with
Insert expertise in the relevant Australian industry and related industries. And have regard to any
information or analysis provided by persons with expertise in the relevant Australian industry and
related industries.
Item 42 Subsection 269ZZS(3) This amendment enables the Review Officer to consider information that was before the CEO during
Repeal and substitute the initial investigation, any new or updated information that reasonably could not have been
provided earlier and any information or analysis provided by persons with expertise in the relevant
Australian industry and related industries.
Currently, the paragraph reads: "In making a decision...the Review officer must have regard only to
information that was before the CEO when the CEO made the reviewable decision".
Item 43 Subsection 269ZZT(4) This amendment enables the Review Officer to consider information that was before the CEO during
Repeal and substitute the initial investigation, any new or updated information that reasonably could not have been
provided earlier and any information or analysis provided by persons with expertise in the relevant
Australian industry and related industries.
Currently, the paragraph reads: "In making a decision...the Review officer must have regard only to
information that was before the CEO when the CEO made the reviewable decision".
Item 44 Subsection 269ZZU(3) In reviewing a negative preliminary decision, this amendment says that the Review Officer may
Repeal and substitute consider information that was before the CEO during the initial investigation, any new or updated
information that reasonably could not have been provided earlier and any information or analysis
provided by persons with expertise in the relevant Australian industry and related industries.
Currently, the paragraph only says the Review Officer must have regard to information that was
before the CEO when the CEO made the reviewable decision.
Item 45 Subsection 269ZZUA(5) This amendment enables the Review Officer to consider information that was before the CEO during
Repeal and substitute the initial investigation, any new or updated information that reasonably could not have been
provided earlier and any information or analysis provided by persons with expertise in the relevant
Australian industry and related industries.
Currently, the paragraph reads: "In making a decision...the Review officer must have regard only to
information that was before the CEO when the CEO made the reviewable decision".
Item 46 Section 269ZZUA - Inserts the provision that if an application makes an application for a review of a negative prima
Insert facie decision or a termination decision and the Review Officer is considering the application, the
Review officer may make a Review Officer CEO decision affirmative determination, and give notice
of that determination.
- Customs may then require and take securities that become payable if it is satisfied that it is
necessary to do so t prevent material injury to an Australian industry while the review is ongoing and
until the Minister makes a decision.
This means that securities can be collected from the importer of the alleged goods as soon as a
Review by the Review Officer has been initiated.
This is intended to protect local manufacturers while a review is ongoing.
Item 47 Subsection 273GA(1) This amendment allows that a decision of the CEO, the Minister or the Review Officer may be
Add applied to the Administrative Appeals Tribunal for review.