Bills Digest No. 233  1997-98 Customs Legislation (Anti-dumping Amendments) Bill 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

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.

Purpose

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.

Background

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.

Endnotes

  1. L. Willett, Review of Australia's Anti-Dumping and Countervailing Administration, Sept 1996, 19-21.

Contact Officer and Copyright Details

Ian Ireland
22 June 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1998

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1998.



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