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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Customs Legislation (Anti-dumping
Amendments) Bill 1998
Date Introduced: 14 May 1998
House: House of Representatives
Portfolio: Customs and Consumer Affairs
Commencement: With the exception of
item 11 of Schedule 3, the
amendments outlined in this Digest commence on Proclamation.
However, if they do not commence within 6 months of the Bill
receiving Royal Assent, they will be taken to have commenced the
day after that end of that period. Item 11 of
Schedule 3, which provides for the repeal of the
Anti-Dumping Authority Act 1988, will commence on
Proclamation, but not more than 150 days after the date fixed for
the commencement of the other provisions in the Bill.
The major
amendments proposed by the Bill:
- abolish the Anti-Dumping Authority
- establish a new independent reviewer, the Trade Measures Review
Officer, to review certain decisions, including a decision of the
Minister not to publish a dumping or countervailing duty
notice
- establish new procedures for decisions regarding anti-dumping
and countervailing subsidisation within the Australian Customs
Service (ACS), including a new timetable for decision-making
- allow the Minister to independently initiate anti-dumping and
countervailing subsidisation investigations.
What is dumping?
Dumping occurs when products from one country
are exported to another country at prices less than their normal
value. Australian anti-dumping law is the product of Australia's
obligations under the General Agreement on Tariffs and Trade, the
Agreement on Implementation of Article VI (the Anti-Dumping Code)
and the Agreement on Interpretation and Application of Articles VI,
XVI and XXIII (the Code on Subsidies and Countervailing Duties).
The Customs Act 1901 and the Customs Tariff
(Anti-Dumping) Act 1975 are the principal legislative
instruments relating to anti-dumping.
Where an application claiming dumping has been
lodged with the Anti-Dumping Authority (ADA), which administers
Australia's anti-dumping system, the ADA must determine whether
there are sufficient grounds to initiate an investigation. Within
the statutory period allowed for consideration of a claim, the ADA
considers matters including whether the goods meet the produced in
Australia requirements, injury factors, the adequacy and accuracy
of price evidence produced and whether a causal link exists between
the alleged dumping and injury to an Australian industry.
Countervailing duties are duties imposed on
imports to offset government subsidies to producers or exporters in
the exporting country.
The Willet Review
On 25 June 1996 the Minister for Small Business
and Consumer Affairs appointed the independent consultant Lawrie
Willett to undertake a review of Australia's anti-dumping and
countervailing administration. The terms of reference for the
Review were as follows:
Being mindful of Australia's
international obligations under the World Trade Organisation, the
review will examine and advise the Minister for Small Business and
Consumer Affairs on:
how the Government's state policy
objective to improve procedures to ensure Australian producers are
not disadvantaged can be met with particular regard to:
- how the specific measures proposed
can be implemented while maintaining the integrity and quality of
the decision making process; and/or
- what alternative measures could
more effectively achieve the stated objectives.
As part of this examination, the review will
assess whether the roles and functions of the Australian Customs
Service and the Anti-Dumping Authority need to change to achieve
the required outcomes and any consequential resource
implications.
Willett delivered his report to the Government
on 6 September 1996. The Review made the following major
recommendations:
- the ADA be abolished and that Customs implement an internal
review process
- the prima facie investigation period be reduced to 20 days
- that provisional measures be capable of being imposed after 60
days of an investigation has elapsed
- that Customs complete its initial investigation within a period
of 100 days from the initiation of the investigation
- that Customs undertake responsibility for the entire 155 day
investigation period. Under the Willett model, the process would
incorporate an initial investigation period of 100 days, 120 in
complex cases, followed by a review period of 55 days. Customs
would then forward a report and recommendations to the
Minister.(1)
The Bill, for the most part, represents the
Government's response to the Willett Review. While both Willett and
the Government propose the abolition of the ADA, the Government's
approach differs in one major respect, that is, provision for a
process of external appeal. Whereas Willett proposed a two-stage
one agency process, the Government proposes a two-stage one agency
process which is followed by a process of external appeal, namely,
the establishment of the TMRO.
Implementation of the Government's proposals is
estimated to result in notional savings of $50 000 per annum for
the next three financial years. This figures compares with an
estimated annual saving of $1 million under the Willett
proposals.
Main
Provisions
A new section 269TAG is
inserted in the Principal Act by item 38 the main
effect of which is to allow the Minister, on his/her initiative, to
commence an investigation into an anti-dumping measure. Where the
Minister initiates an investigation it must be carried out in
accordance with the Minister's requirements. The Minister is also
accorded power to take anti-dumping measures as a consequence of an
investigation.
The effect of item 42 is to
reduce from 25 days to 20 days the period within which the Chief
Executive Officer (CEO) of Customs has to determine whether an
application for the imposition of a dumping duty or countervailing
duty should be rejected.
Item 43 places a 30 day time
limit within which a person who has an application rejected may
refer the matter to Trade Measures Review Officer (TMRO).
Subsection 269TC(4) of the Principal Act sets
out what must be contained in a public notice advising of the
commencement of an investigation into dumping or countervailable
subsidisation. The principal amendments proposed by item
46 are to require the public notice to:
- indicate that a report will be made by the Minister within 155
days of commencement of the investigation of the goods subject to
the application
- state that within 110 days of commencing an investigation, or
such longer period as the Minister determines under
proposed section 269ZHI, the CEO must place on the
public record a statement of the essential facts on which s/he
proposed to base a recommendation to the Minister
- invite interested parties to lodge with the CEO, within 20 days
of the CEO placing on the public record a statement of the
essential facts on which s/he proposed to base a recommendation to
the Minister, submissions in response to that statement.
New section 269TD, dealing with
preliminary affirmative determinations, is inserted in the
Principal Act by item 47. The proposed section
provides the CEO with the power to make preliminary affirmative
determinations. A preliminary affirmative determination is a
determination by the CEO made 60 days after the date of initiation
of an investigation into whether there are sufficient grounds for a
dumping or countervailing duty notice that there appears to be, or
will be, such sufficient grounds.
Item 47 also inserts a
new section 269TDAA in the Principal Act which
requires the CEO to publicly publish a statement of essential facts
on which s/he proposed to base a recommendation to the Minister in
relation to an investigation into dumping or countervailable
subsidisation. The statement is to be published within 110 days, or
such longer period as the Minister allows, of the initiation of an
investigation.
Where the CEO terminates an investigation into
dumping or countervailable subsidisation, s/he must inform the
applicant of their right, within 30 days of public notice of the
termination decision, to apply for a review of the decision by the
TMRO (item 48).
Section 269X of the Principal Act deals with
Customs consideration of an application for assessment of duty. The
effect of item 63 is to reduce from 180 days to
150 the period within which the CEO must consider an application
for assessment of duty in respect of goods entered for home
consumption. The 180 day period will also be reduced to 150 in
respect of:
- the period within which a person must supply the CEO, where so
requested, with information relevant to the consideration of an
application for assessment of duty
- where the CEO proposed to take into account any relevant
information that was not supplied to her/him by the applicant for
an assessment of duty, the period within which the applicant has to
make any further submission.
The period within which a person, other than the
applicant for an assessment of duty, must supply the CEO, where so
requested, with information relevant to the consideration of an
application is reduced from 150 days to 120 days.
New sections 269Z-269ZDB,
dealing with the internal review of anti-dumping measures, are
inserted in the Principal Act by item 70. The
major effects of the proposed sections include:
- providing affected parties with the opportunity to apply to the
CEO for a review of the measures (Such an application may only be
lodged in certain circumstances, including where one or more of the
variable factors (eg. normal value) relevant to the measures have
changed, and within 12 months of publication of a dumping or
countervailing duty notice.)
- providing the Minister with power to initiate at any time, on
the recommendation of the CEO or on her/his initiative, a review of
anti-dumping measures. (Such a review may only be initiated where
one or more of the variable factors relevant to the measures have
changed, or if those measures had not been taken, the Minister
would not be entitled to take any such measures.)
- requiring the CEO to approve or reject an application by an
affected party for review of anti-dumping measures within 20 days
of receipt of the application
- requiring the CEO, by public notice, to indicate that a report
in relation to a review of anti-dumping measures will be made to
the Minister within 155 days of publication of the notice
- requiring the CEO to publicly publish a statement of essential
facts on which s/he proposes to base a recommendation to the
Minister in relation to a review of anti-dumping measures within
110 days of publication of the notice, or such longer period as the
Minister allows
- requiring a refund of duty where a ministerial declaration
pursuant to a review of anti-dumping measures changes results in a
reduction of duty payable
New sections 269ZHA-269ZHG,
dealing with the continuation of anti-dumping measures, is inserted
in the Principal Act by item 74. The major effects
of the proposed sections include:
- 9 months before an anti-dumping measure expires, that the
public be notified of that expiry and interested parties be invited
to apply within 60 days of the public notification for a
continuation of the measures
- termination of anti-dumping measures where no application for
continuation is received by the CEO
- requiring the CEO, by public notice, to indicate that a report
in relation to a continuation will be made to the Minister within
155 days of publication of the notice (this period may be extended
if the period described below is extended)
- requiring the CEO to publicly publish a statement of essential
facts on which s/he proposes to base a recommendation to the
Minister in relation to a continuation of anti-dumping measures
within 110 days of publication of the notice, or such longer period
as the Minister allows
- providing the Minister with an absolute discretion to approve
or not approve the continuation of anti-dumping measure following
receipt of the report of the CEO and any other information s/he
considers relevant in relation to the continuation of anti-dumping
measures
- providing that where the Minister approves the continuation of
anti-dumping measures, those measures continue in force for 5 years
unless revoked or provision is made for their earlier
expiration.
Item 86 inserts new
sections 269ZK-269ZZY, dealing with the Trade Measures
Review Officer (TMRO), in the Principal Act. Proposed
section 269ZL provides for the appointment, by the
Minister, of the TMRO. The Minister is prohibited from appointing a
person as TMRO who is a Customs officer. The TMRO will have the
same protection and immunity as a High Court Justice in the
performance of her/his duties (proposed section
269ZN). The TMRO will hold office for a period not
exceeding three years and on terms and conditions determined by the
Minister (proposed section 269ZO). The TMRO is
prevented from supplying information (other than personal
information) to a person if to do so would constitute a breach of
confidence and also personal information unless it is supplied to
the CEO, or a Customs officer, for purposes relating to a
reinvestigation. These confidentiality rules will not apply to the
Minister, CEO, Secretary to the Department, designated Customs
officer, or designated departmental officer (proposed
section 269ZU).
Proposed section 269ZV makes it
an offence, punishable by a maximum fine of $2200, for a person to
knowingly give the TMRO false or misleading information. No offence
will have been committed where the person informs the TMRO, at the
time the information is provided, that the information if false or
misleading and specifies in what respect it is so.
The major effects of proposed sections
269ZW-269ZZY, which deal with review by the TMRO,
include:
- providing interested parties (an interested party includes a
person who is likely to be directly concerned with the importation
or exportation into Australia of goods the subject of a reviewable
decision (proposed section 269ZX)) which are
affected by a reviewable decision with an opportunity to apply to
the TMRO for a review of the decision (a reviewable decision
includes a decision of the Minister to publish or not publish a
dumping or countervailing duty notice (proposed sections
269ZZA and 269ZZN))
- after the TMRO accepts an application for a review, requiring
that s/he issue a public notice indicating s/he proposes to conduct
a review (the notice must include certain matters, including
inviting interested parties to lodge within 30 days of publication
of the notice submissions concerning the application)
(proposed section 269ZZI)
- requiring the TMRO to report to the Minister at least 30 days
after public notification of the review, but not later than 60
after that notification, or such longer period as the Minister
allows (proposed section 269ZZK)
- where the Minister receives a recommendation from the TMRO to
affirm a reviewable decision, or does not accept a recommendation
by the TMRO to require the CEO to reinvestigate a finding/s that
formed the basis of the decision, requiring the Minister to
publicly affirm the reviewable decision (proposed section
269ZZL)
- where the Minister accepts a recommendation of the TMRO to
require the CEO to reinvestigate a finding/s, requiring the
Minister to direct the CEO to further investigate the finding/s,
report the result of the reinvestigation, and issue a public notice
of acceptance of the TMRO's recommendation (proposed
section 269ZZL)
- following a reinvestigation by the TMRO and receipt of a
report, requiring that the Minister affirm or revoke the reviewable
decision concerned. (Where the Minister affirms a reviewable
decision s/he may publish a dumping or countervailing duty notice,
vary a dumping or countervailing duty notice, or revoke and
substitute another dumping or countervailing duty notice.)
Item 11 of Schedule
3 of the Bill repeals the Anti-Dumping Authority Act
1988.
- L. Willett, Review of Australia's Anti-Dumping and
Countervailing Administration, Sept 1996, 19-21.
Ian Ireland
22 June 1998
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ISSN 1328-8091
© Commonwealth of Australia 1998
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