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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CUSTOMS TARIFF (ANTI-DUMPING) AMENDMENT BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Industry and Science,
the Honourable Ian Macfarlane MP)
CUSTOMS TARIFF (ANTI-DUMPING) AMENDMENT BILL 2015
OUTLINE
The purpose of the Bill is to amend the Customs Tariff (Anti-Dumping) Act 1975 (Dumping
Act) to simplify and modernise publication provisions for anti-dumping notices, clarify
provisions regarding consideration of the lesser duty rule and clarify the operation of
exemption provisions.
To modernise and simplify the publication of notices related to anti-dumping processes and
decisions, provisions of the Dumping Act would be amended to require that notices be
published electronically. Public notices made by the Anti-Dumping Commissioner (the
Commissioner) and the Minister would be required to be published on the Anti-Dumping
Commission's (the Commission) website. The requirements for various notices to be
published in the Gazette or in newspapers would be removed.
To clarify the circumstances in which the Minister is not required to have regard to the lesser
duty rule, provisions of the Dumping Act would be amended to require that the Minister is
not required to have regard to the lesser duty rule where a country has not submitted a
notification of its subsidies, as mentioned in paragraph 1 of Article 25 of the Agreement on
Subsidies and Countervailing Measures, at least once in the compliance period. This
amendment clarifies the circumstances in which the Minister is not required to have regard to
the desirability of setting a lesser duty in light of the practices regarding submission of
subsidy notifications under the WTO Committee on Subsidies and Countervailing Measures.
The Bill would amend the Dumping Act to clarify that the Minister may grant exemptions
with limited retrospective effect - that is, when the Minister decides to grant an exemption he
or she may specify that the exemption takes effect from an earlier date back to the date the
application for exemption was made.
FINANCIAL IMPACT STATEMENT
The Bill is expected to have a positive financial impact. The extent of the positive financial
impact will be dependent on the commencement of the Bill as the requirement to publish
notices in newspapers and the Gazette will not cease until the Bill has commenced. The
estimated combined magnitude of the financial impact of this Bill and the Customs
Amendment (Anti-Dumping Measures) Bill (No.1) 2015 is summarised in the table below.
MEASURE INDICATIVE FINANCIAL IMPACT
Anti-Dumping Review Panel Saving of $0.74 million over from 2014-15 to
2018-19 inclusive.
Requiring electronic publishing of
notices Saving of $1.09 million over from 2014-15 to
2018-19 inclusive.
The savings generated would be used to offset the cost of implementing non-legislative
measures of the anti-dumping reforms package, specifically the establishment of an
Anti-Dumping Information Service and improvement of the International Trade Remedies
Advisory Service to assist access to the anti-dumping system, especially for small and
medium businesses.
REGULATION IMPACT STATEMENT
This Bill has nil regulatory impact as the amendments clarify current practices and provide
legal certainty.
The amendments of this Bill, in conjunction with the non-legislative elements of the
Government's reform package, have a minor reduction in regulatory burden. The estimated
average annual reduction in regulatory burden of the reform package is $0.1m.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
CUSTOMS TARIFF (ANTI-DUMPING) AMENDMENT BILL 2015
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.
Overview of the Bill
The Bill would amend the Customs Tariff (Anti-Dumping) Act 1975 (Dumping Act) to
simplify and modernise publication provisions for anti-dumping notices, clarify provisions
regarding consideration of the lesser duty rule by the Minister and clarify the operation of
exemption provisions.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
The Minister for Industry and Science, the Honourable Ian Macfarlane MP
CUSTOMS TARIFF (ANTI-DUMPING) AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act to be cited as the Customs Tariff (Anti-Dumping) Amendment
Act 2015.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement information for
various provisions in the Act. Each provision of the Act specified in column 1 of the table
commences (or is taken to have commenced) in accordance with column 2 of the table and
any other statement in column 2 has effect according to its terms.
The table has the effect of providing for:
sections 1 to 3 and anything in this Act not elsewhere covered by this table to
commence on Royal Assent;
Schedule 1 to commence on Proclamation or if the provision(s) do not commence
within the period of 6 months on the day this Act receives Royal Assent, then they
commence on the day after that period.
Subclause 2(2) provides that column 3 of the table is for additional information which may be
added to or edited in any published version of the Act but that information is not part of the
Act.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a schedule is amended or repealed as
set out in the applicable Items in the schedule and that any other Item in a schedule has effect
according to its terms.
Schedule 1-- Amendments
Part 1--Submission deadlines
Customs Tariff (Anti-Dumping) Act 1975
Item 1: Paragraph 8(5BAAA)(c)
Amendments to the Customs Act 1901 (the Customs Act) and the Dumping Duty Act passed
in 2013 removed the Minister's mandatory consideration of the lesser duty rule in certain
cases. One of the specified cases is when, in relation to a countervailing investigation, the
country involved is determined by the Minister to have not submitted its WTO subsidy
notification obligations during a determined compliance period.
The amendment in Item 1 clarifies the legislation in relation to this circumstance when the
Minister is determining the outcomes of a concurrent dumping duty investigation and
countervailing investigation in respect of the same goods.
Item 1 amends paragraph 8(5BAAA)(c) by replacing "the country in relation to which the
subsidy has been provided has not complied with Article 25 of the Agreement on Subsidies
and Countervailing Measures (ASCM) for the compliance period" with "the government of
the country in relation to which the subsidy has been provided has not submitted notification
of its subsidies, as mentioned in paragraph 1 of Article 25 of the Agreement on Subsidies and
Countervailing Measures, at least once in the compliance period".
This amendment provides that the Minister is not required to have regard (although may still
decide to have regard) to the lesser duty rule when considering the imposition of dumping
and countervailing duties, if satisfied that the relevant country of export has not submitted
notification of its subsidies at least once in the compliance period.
Notification of subsidies refers to paragraph 1 of Article 25 of the ASCM which provides for
WTO Members to submit annual notifications of subsidies. In current practice, the WTO
Committee on Subsidies and Countervailing Measures (the body to be notified) allows for
notification to be made every two years.
The compliance period is defined by legislative instrument made for the purpose under
subsection 269T(1A) of the Customs Act. Currently, it is defined to be the two most recent
biennial periods, ending prior to the date of initiation of a countervailing investigation.
In order for the Minister to not have mandatory regard to the consideration of applying a
lesser duty, in this case, the Minister must be satisfied that the government of the country of
export has not submitted notification of its subsidies at least once in the compliance period.
That is, if a country has submitted one notification in the two most recent biennial periods for
which subsidy notifications were due and prior to the initiation of the investigation then the
Minister must consider the desirability of applying a lesser amount of duty. If no notification
was made during that period, then the Minister is not required to consider the desirability of
applying a lesser amount of duty.
Item 2: Subsection 8(5C)
This Item amends subsection 8(5C) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". This will abolish the need to for the publication of notices issued
under section 8 to be published in the Gazette, replacing it with the publication of those
notices on the Anti-Dumping Commission's (the Commission's) website. The objective is to
consolidate the Minister's notices, making them more accessible to the public and to reduce
the financial costs associated with print media.
Item 3: Subsection 8(8)
This Item amends subsection 8(8) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2.
Item 4: After subsection 8(8)
This Item inserts new subsection (8A) after subsection 8(8). New subsection (8A) will clarify
the Minister's power to exempt goods from dumping duty with limited retrospective effect,
that is, when the Minister decides to grant an exemption under section 8, he or she may
specify that the exemption takes effect from a date that is no earlier than the date the
exemption application was made.
Item 5: Subsection 9(5B)
This Item amends subsection 9(5B) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2,
except that it relates to notices issued under section 9.
Item 6: Subsection 9(8)
This Item amends subsection 9(8) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2,
except that it relates to notices issued under section 9.
Item 7: At the end of section 9
This Item inserts new subsection (9) at the end of the section. The effect of this Item is the
same as that of Item 4 except that it relates to exemptions from third country dumping duty
granted by the Minister under section 9.
Item 8: Paragraph 10(3CA)(a)
Item 8 replaces paragraph 10(3CA)(a). This Item is consistent with the amendment at Item 1,
but applies to the Minister's determination of an outcome to countervailing investigation only
(not in combination with a concurrent dumping investigation).
This amendment provides that the Minister is not required to have regard to the lesser duty
rule when considering the imposition of countervailing duties if the relevant country of
export has not submitted notification of its subsidies at least once in the compliance period.
That is, consistent with Item 1, if a country has submitted one notification in the two most
recent biennial periods for which subsidy notifications were due and prior to the initiation of
the investigation then the Minister must consider the desirability of applying a lesser amount
of duty. If no notification was made during that period, then the Minister is not required to
consider the desirability of applying a lesser amount of duty.
Item 9: Paragraph 10(3DA)(a)
Item 9 replaces paragraph 10(3DA)(a). This Item is consistent with the amendment at Item 1
and applies to the Minister's determination of an outcome to a concurrent dumping and
countervailing investigation in respect of the same goods.
This amendment provides that the Minister is not required to have regard to the lesser duty
rule when considering the imposition of dumping and countervailing duties if the relevant
country of export has not submitted notification of its subsidies at least once in the
compliance period.
That is, consistent with Item 1, if a country has submitted one notification in the two most
recent biennial periods for which subsidy notifications were due and prior to the initiation of
the investigation then the Minister must consider the desirability of applying a lesser amount
of duty. If no notification was made during that period, then the Minister is not required to
consider (although still may do so) the desirability of applying a lesser amount of duty.
Item 10: Subsection 10(5B)
This Item amends subsection 10(5B) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2
except that it relates to notices issued under section 10.
Item 11: Subsection 10(9)
This Item amends subsection 10(9) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2
except that it relates to notices issued under section 10.
Item 12: After subsection 10(9)
This Item inserts new subsection (9A) after subsection 10(9). The effect and objective of this
Item is the same as that of Item 4 except that it relates to exemptions from countervailing
duty granted by the Minister under section 10.
Item 13: Paragraph 11(5A)(a)
Item 13 replaces paragraph 11(5A)(a). This Item is consistent with the amendment at Item 1,
but applies to the Minister's determination of an outcome to a third country countervailing
investigation.
This amendment provides that the Minister is not required to have regard to the lesser duty
rule when considering the imposition of third country countervailing duties if the relevant
country of export has not submitted notification of its subsidies at least once in the
compliance period.
That is, consistent with Item 1, if a country has submitted one notification in the two most
recent biennial periods for which subsidy notifications were due and prior to the initiation of
the investigation then the Minister must consider the desirability of applying a lesser amount
of duty. If no notification was made during that period, then the Minister is not required to
consider (although still may do so) the desirability of applying a lesser amount of duty.
Item 14: Subsection 11(6)
This Item amends subsection 11(6) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2
except that it relates to notices issued under section 11.
Item 15: Subsections 11(8) and (9)
This Item amends subsections 11(8) and (9) by replacing references to "duties" with "duty
or". This Item fixes an obvious technical error in the current legislation.
Item 16: Subsection 11(9)
This Item amends subsection 11(9) by replacing "Gazette" with "on the Anti-Dumping
Commission's website". The effect and objective of this Item is the same as that of Item 2
except that it relates to notices issued under section 11.
Item 17: At the end of section 11
This Item inserts new subsection (10) at the end of section 11. The effect of this Item is the
same as that of Item 4 except that it relates to exemptions from third country countervailing
duty granted by the Minister under section 11.
Item 18: Application provisions
This Item provides that:
(1) The amendments made by Items 1, 2, 5, 8, 9, 10, 13 and 14 apply in relation to notices
signed on or after the commencement of those Items; and
(2) The amendments made by Items 3, 4, 6, 7, 11, 12, 16 and 17 apply in relation to
instruments of exemption made on or after the commencement of those Items.
The objective of these provisions is to provide certainty to stakeholders as to the application
of amendments made in this Bill.