Bills Digest No. 100 2002-03
Customs Legislation Amendment Bill (No. 2)
2002
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Customs Legislation Amendment Bill
(No. 2) 2002
Date Introduced:
12 December 2002
House: House of Representatives
Portfolio: Justice and Customs
Commencement:
Various dates as set
out in the table in Clause 2
Purpose
The Bill has
three main purposes:
-
- to redefine the 'normal value' of goods imported from economies
in transition for use in determining whether goods are being
dumped
-
- to amend the anti-dumping provisions in the Customs Act
1901 to align them with World Trade Organization Agreement on
the Implementation of Article VI of the General Agreement on
Tariffs and Trade, and
-
- to exempt air security officers from the passenger movement
charge.
The Bill also makes minor changes to the
Customs Act 1901 consequent to the commencement of the
Customs
Legislation Amendment and Repeal (International Trade
Modernisation) Act 2001.
Part XVB of the Customs
Act 1901 (the Customs Act) contains provisions dealing
with anti-dumping. Dumping is the sale of a good in another country
for less than the price in the home country the 'normal price' to
gain a competitive advantage over other suppliers. Consumers may
benefit from dumping through access to cheaper finished goods and
downstream industries may benefit when the goods are used in the
production process. However, But dumping can also injure domestic
producers. They can apply to have retaliatory (anti-dumping) duty
applied to dumped imports.
Governments (often?) take measures often have
the effect thatof directly or indirectly subsidiseing exports. With
some major exceptions such as agricultural commodities government
subsidisation of exports is generally prohibited under the General
Agreement on Tariffs and Trade (GATT) and now World Trade
Organization (WTO) rules. Producers who are injured by export
subsidies can apply (to their relevant national authority whom?) to
have countervailing duty applied to subsidised
imports.(1)
The 'economies in transition', that is, those
moving from centrally-planned to market-based economies pose
particular difficulties in determining whether goods are dumped. is
is at'sThat's because such economies have both planning and market
features. Under central planning, prices were set 'artificially'
[AM Comment - after all, to call them artificial this a value
judgment] and usuallat levels that yoften bore little relationship
to market-determined prices.
The extent to which direct price controls have
been abolished in formerly centrally-planned economies varies. But
even where direct price controls have been abolished, government
policy can still influence prices indirectly. For example, in
China, exporters buy materials from unprofitable state-owned
enterprises. For political reasons, these enterprises are propped
up by bank loans that the banks will never recover. Such loans can
thus indirectly affect export prices. In other cases, local
governments provide assistance to enterprises located in their
jurisdictions.
To have anti-dumping measures taken, it has to
be shown first, that the goods are dumped second, that dumping
involves injury to domestic producers of competing goods and third,
that the import of goods is responsible for the injury. Charges of
dumping are difficult to prove. In particular, domestic producers
have to show that the dumped price is lower than the normal price.
Existing Ssubsection 269TAC(1) of the Customs Act defines normal
value. But in certain circumstances, this definition may not be
applicable. Existing Ssubsection 269TAC(5E) provides that where a
'price control situation' applies, the Minister is responsible for
determining normal value. The situation is relatively straight
forward where direct price controls are in force. But according to
the Explanatory Memorandum, doubt exists as to whether a price
control situation encompasses the indirect effects of government
intervention:
It is unclear whether the current test of price
control covers indirect government interference. The amendments
recognise that something less than actual control may still result
in significant distortion in the calculation of normal value.
Therefore, the test of price control is being replaced with a test
of price influence.(2)
The Bill therefore proposes changes that seek to
encompass the indirect effects on prices of government intervention
by using the concept of price influence, which has broader
application than price control.
Part of the difficulty in assessing the merit of
anti-dumping applications is the lack of information. The Minister
in his second reading speech made it clear that exporters are to
cooperate in providing information in determining whether influence
over prices exists. If the exporter does not provide information or
inadequate information, under proposed amendments, a situation of
price influence will be deemed to exist.
An analysis of trends in worldwide and
Australian anti-dumping activity can be found in Global
Trade Protection and Australian Anti-Dumping Activity.
According to an Australian Financial Review
article, the Industry Taskforce on Anti-Dumping a coalition of
Australian manufacturers has welcomed the anti-dumping proposals.
The Taskforce is concerned that countries in transition such as
China and Russia are dumping goods, and wants the onus put on
exporters to show that they are operating in a free market. On the
other hand, the article also quotes a lawyer representing importers
in anti-dumping cases who warns that the legislation would increase
protection for some industries.(3)
The Passenger Movement Charge (PMC) was
introduced in July 1995 (replacing the departure tax). The PMC is
levied under the Passenger
Movement Charge Act 1978 and collected under the Passenger
Movement Charge Collection Act 1978 (the Collection Act).
The PMC was introduced as a cost recovery measure to recoup the
notional cost of cCustoms, iImmigration and qQuarantine processing
of passengers entering and leaving Australia and the cost of
issuing short-term visitor visas. However, in law, the PMC is a
tax.
The PMC was levied at $30 per passenger.
However, in the 2001-02 budget, the Government announced that it
would increase the charge by $8 to $38 to offset the increased cost
of inspecting passengers, mail and cargo at Australia's
international airports.
Generally speaking, the PMC is payable by all
passengers departing Australia by air and sea. Section 5 of the
Collection Act contains a number of exemptions such as those for
diplomats and children under 12 years. There are 12 categories of
exemption in total. The PMC is not levied on incoming
passengers.
The Australian Customs Service administers the
PMC legislation through arrangements with each transport carrier
and the arrangements are standardised for each type of carrier.
Following the terrorist attacks on the United
States in September 2001, the Government has taken a number of
steps to enhance security at airports and on aircraft. This
includes randomly placing armed plain-clothes Australian Protective
Service officers on flights under the Commonwealth Air Security
Officers program. The security officers are from the Australian
Protective Service. The Government has decided that these officers
should be exempt from the PMC and the proposed amendment to the
Collection Act gives effect to that decision.(4)
While initially a cost recovery measure, the PMC
became more controversial over allegations that it has become yet
another general revenue raising measure. That the PMC has moved
beyond cost recovery and is contributing to consolidated revenue is
clear from the evidence given to the Senate Legal and
Constitutional Committee (Australian Customs Service program) on 28
May 2001.(5) An official of the Department of Finance
and Administration gave the following in evidence:
Mr Woodward In round terms, our assessment of
the over-recovery and this is revealed in answers to questions that
have been asked before, on notice is something like an $80 million
collection greater than the actual costs of customs, immigration
and quarantine, but the passenger movement charge is a tax. It is
not a pure cost recovery arrangement, and that indication of moving
away from direct relativity came out when the $3 increase was made
at just about Olympics time. So that is clearly on the public
record.
The Customs
Legislation Amendment and Repeal (International Trade
Modernisation) Act 2001 (the Modernisation Act) was passed to
modernise the way in which the Australian Customs Service manages
the movement of cargo in and out of Australia. The Modernisation
Act, among other things, contains provisions that allow Customs
officers to exercise monitoring powers and to issue infringement
notices. The proposed amendments make minor administrative changes to the Customs Act.
The Bill contains three Schedules:
-
- Schedule 1 the bulk of the Bill deals with anti-dumping
-
- Schedule 2 deals with air security officers, and
-
- Schedule 3 deals with technical amendments relating to trade
modernisation.
Schedule 1 has seven parts that deal with the
following:
-
- Part 1: economies in transition
-
- Part 2: cumulative effect of exports to Australia
-
- Part 3: references to domestic industry
-
- Part 4: assessment of duty
-
- Part 5: accelerated review for new exporters only
-
- Part 6: applying to continue anti-dumping measures, and
-
- Part 7: reinvestigation by the Chief Executive officer (CEO) of
the Australian Customs Service.
Section 269T of the Customs Act contains
definitions. Items I1-2 amends subsection 269T(1)
to include introduce a new definition [new subsection
269T(5C)] of an economy in transition. This definition is
that given in proposed new subsection
269T(5C).
Item 2 inserts proposed new
subsection 269T(5C). This definition has two elements:There are two
elements to this definition:
-
- state monopolisation of trade, and
-
- substantial government influence over prices.
Comment. While both were
features of centrally-planned economies, they had other features
such as the subsidisation of unprofitable state-owned enterprises.
In this sense, the definition is inadequate. However, since both
elements were features of all centrally-planned economies, the
definition suffices for the purposes of the legislation. The term
'before the time' in proposed subsection 269T(5C)
seems to refer to the time before the Minister's determination
whereas 'at the time' seems to refer to the time of the Minister's
determination..
Section 269TAC of the Customs Act deals with the
concept of normal value. Subsection 269TAC(5D) has a definition of
an economy in transition for the purposes of assessing normal
value. Subsection 269TAC(5E) defines a 'price control situation'.
Item 3 repeals these two subsections and inserts
proposed subsections 269TAC(5D) and
269TAC(5E). Proposed subsection
269TAC(5D) provides that in the case of exports from
economies in transition, the Minister is responsible for
determining normal value. The Minister may make a determination if
the economy concerned is an economy in transition and at least one
of four situations applies. These conditions fall into two broad
categories:
-
- the government significantly affects domestic prices
-
- in which case the domestic price is not suitable for
determining normal price
-
- the exporter does not provide adequate information or the
information that the exporter provides is inadequate. In this
case:
the presumption, in the absence of the necessary
information, will be that the domestic selling price has been
significantly affected by government.(6)
New subsection 269TAC(5E)
provides that in determiningassessing normal value in accordance
with the conditions in proposed paragraph
269TAC(5D)(a) or (b), the Minister must
have regard to matters prescribed by regulation. On 7 December
2000, the Minister issued guidelines dealing with price control in
economies in transition (see
Australian Customs Dumping Notice 2000/60). These guidelines
are likely to be incorporated into regulations subject to
amendments to take account of price influence as distinct from
price control.
Comment. Note that
proposed subparagraph 269TAC(5D)(a)(ii) refers to
government 'at any level'. This is important in countries such as
China where local governments frequently assist enterprises in
their jurisdictions even to the point of preventing goods from
entering from other jurisdictions; such interprovincial 'trade
wars' were common in the late 1980s and early 1990s. Note, too,
that the government in the economy transition must 'significantly'
affect prices. While this seems to meet the intention of the
legislation to encompass indirect as well as direct effects on
prices, a potential stumbling block in the application of the
legislation is likely to be the meaning of 'significantly'.
Item 4 repeals subsections
269AC(5G) and (5H) because with the definition of significant
government effect on prices in Item 3, these two
subsections are redundant.
Division 2 of Part XVB of the Customs Act deals
with what the Australian Customs Service CEO must do when
considering ant-dumping matters. When an applicant applies to have
dumping duty applied to imports under section 269TC of the Customs
Act the CEO of the Australian Customs Service must examine whether
there is prima facie case to support the application. If the CEO
does not reject the application, the CEO must issue a public notice
containing the information as set out in subsection 269TC(4).
Item 7 contains additional procedures in
proposed new subsection 269TC(8) that the CEO must
follow if the exporters in economies in transition have been named
in the application to have dumping duties applied. This includes
giving the exporters a questionnaire to complete and informing them
that it has to be completed within a certain time. It also includes
telling the exporters that if the information they provide does not
provide a 'reasonable basis' for assessing whether the government
significantly affects prices, then the Minister will determine the
normal value.
Comment. Item
7 is a key amendment. The effect of this section is to put
the onus on exporters in economies in transition to show that
government does not significantly affect the selling price of their
goods. If exporters cannot demonstrate that the government does not
significantly affect prices, the Minister is responsible for
determining normal value. If, on the other hand, exporters can
demonstrate that the government does not significantly influence
prices, then the price paid on the domestic market becomes the
normal price.
As noted, for measures to be taken against
dumped imports, dumping must entail injury to domestic producers.
Section 269TAE of the Customs Act deals with 'material injury to
industry'. Subsection 269TAE(2C) deals with the cumulative effect
of exports by different exporters from the same country or
from different countries, in determining whether there has been
injury. But this subsection is inconsistent with Article 3.3 of the
World Trade Organization Agreement on
Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994. Article 3.3 reads:
Where imports of a product from more than one
country are simultaneously subject to anti-dumping investigations,
the investigating authorities may cumulatively assess the effects
of such imports only if they determine that (a) the margin
of dumping established in relation to the imports from each country
is more than de minimis as defined in paragraph 8 of
Article 5 and the volume of imports from each country is not
negligible and (b) a cumulative assessment of the effects
of the imports is appropriate in light of the conditions of
competition between the imported products and the conditions of
competition between the imported products and the conditions of
competition between the imported products and the like domestic
product.
The de minimis margin is less than two
per cent.
In short, Article 3.3 allows cumulative
assessments only when goods are exported from 'more than one
country'. Subsection 269TAE(2C), on the other hand, currently
provides that the Minister should consider the cumulative effect of
exports of like goods to Australia:
by different exporters from the same country of
export or from different countries of export
Item 9 substitutes a proposed subsection
269TAE(2C). It repeals 269TAE(2C). The proposed new
subsection picks up the point in Article 3.3 mentioned above about
'imports of a product from more than one country' by dropping 'by
different exporters from the same country of export' but retaining
'from different countries of export'. The proposed new subsection
also incorporatespicks up the points about the de minimis
margin of two per cent [in proposed paragraph
(c)], the non-negligible volume of imports[in
paragraph (d)], and conditions of competition [in
paragraph (e)].
Part 4: Assessment of duty
According to the Explanatory Memorandum,
item 12 changes 'made' to
'lodged' in subsection 269V2 to eliminate a legal distinction which
came to light in a court case where it was decided that there was a
distinction between when an application was made and when it was
lodged.
.
Division 4 (sections 269UA to 269Y) deals with
dumping duty or countervailing duty assessments. Division 4 allows
an importer who has paid interim duty to apply, within specified
time limits, for an assessment of duty payable. Section 269W
specifies the information that an application must contain.
Items 13, 14
and 15 are related. Items 13 and
14 delete from the information required
'information to establish those amounts', that is, amounts of
normal value, export price and countervailing subsidy. Item
15 contains new subsections
269W(1A) and 269W(1B). The thrust
of new subsection 269W(1A) is that the application
must provide evidence to support the claimed normal value, export
price and countervailing subsidy. Alternatively, the applicant must
provide evidence to support the applicant's opinion that the
amounts are correct [paragraph (b)(i)] and give a
commitment that someone else will provide information that supports
the applicant's opinion. [paragraph (b)(ii)]. With
respect to the latter, the Explanatory Memorandum notes:
These amendments recognise that there may be
circumstances in which an applicant (who is an importer) may not
have access to the necessary information to establish the amounts
of normal value or countervailable subsidy as the information would
usually be held by the overseas exporter who may not be willing to
provide it to the importer (for commercial
reasons).(7)
To assess dumping duty that has been levied on
an interim basis, it is necessary to know the export price. But
where a transaction between an importer and exporter is not at
arm's length for example, where the importer is a subsidiary of the
exporting company the export price may differ from the price of an
arm's length transaction. In such cases, it is necessary to
'construct' the export price as if the relationship between the
importer and exporter were at arm's length. Proposed
subsection 269W(1B) relates to a
situation where transactions are not at arm's length, and sets out
the information that applications for duty assessments must
contain, including the price at which the importer sold the goods
to another party not associated with importer.
The Explanatory Memorandum states that
proposed new subsection 269W(1B) gives effect to
Article 9.3.3 of the WTO Agreement on the Implementation of Article
VI of the GATT. But this reference does not seem to be correct
because Article 9.3.3 does not deal with arm's length transactions.
Rather, Article 9.3.3 relates to proposed new sub-section
269X(5B) (see below) and not new subsection
269W(1B).
Section 269X of the Customs Act requires the CEO
to calculate the dumping duty payable and specifies what the CEO
must take into account when calculating assessments. This includes,
for example, requiring applicants to supply information and
informing the applicant that the CEO intends to take into account
certain information that the applicant did not supply. Item
17 inserts proposed new subsection
269X(3A). It provides that the CEO cannot give to the
applicant information that the exporter provided (that is, relevant
to the working out of normal value, countervailing subsidy or
export price) unless the exporter indicates a willingness to
provide the information to the applicant. Comment.
The purpose of this subsection seems to be to ensure that
information that is provided commercial-in-confidence remains just
that.
Item 19 inserts two new
proposed subsections: subsection
2659X(5A) and subsection 2659X(5B).
New subsection 2659X(5A) provides
that new subsection 2659X(5B) applies when the CEO
provisionally ascertains the export price as the difference between
(i) the price at which the importer sold the goods to another party
not associated with the importer that is, an arm's length
transaction and (ii) the deductions such as customs duty, GST and
costs incurred after the goods were exported as defined in
subsection 269TAB(2).
Subsection 2569X(5B) implements
Article 9.3.3 of the WTO Agreement on the Implementation of Article
VI of the GATT, which states:
In determining whether and to what extent a
reimbursement [of anti-dumping duty] should be made when the export
price is constructed in accordance with paragraph 3 of Article 2,
authorities should take account of any change in normal value, any
change in costs incurred between importation and resale, and any
movement in the resale price which is duly reflected in subsequent
selling prices, and should calculate the export price with no
deduction for the amount of anti-dumping duties paid when
conclusive evidence of the above is provided.
Paragraphs (a) and
(b) of new subsection 2569X(5B)
are largely verbatim of Article 9.3.3. New subsection
2569X(5B) also states that the definition of terms used in
the provision and Article 9.3.3 are the same as those used in the
Agreement.
Section 269Y of the Customs Act specifies what
steps the Minister must take to implement duty assessments. These
include considering the CEO's report, ascertaining the dumping
duty, notifying the applicant of the duty payable and, where
applicable, ordering that overpaid duty be repaid. Item
21 adds a proposed new subsection 269YA.
This deals with the circumstances under which the CEO can reject an
application or terminate examination of an application. New
subsection 269YA(1) provides that despite sections 269X
and 269Y, section 269YA has effect if an application under section
269V which deals with the right of importers to apply for duty
assessments in certain circumstances is lodged under section 269W
which specifies what an application must contain. In other words,
the requirements of sections 269X and 269Y do not prevent the CEO
from rejecting an application or terminating an examination.
New subsections 269YA(2) and
269YA(3) set out the circumstances under which the
CEO must reject applications. The first circumstance [new
subsection 269YA(2)] is where the CEO is satisfied, within 20 days
after an application is lodged, that it does not contain all the
information it must contain. The second circumstance is set out in
new subsection 269YA(3). This provides that where an application
contains a commitment that someone else will provide additional
evidence to support the applicant's claims, and the CEO considers
that he or she has not received sufficient evidence from either the
applicant or other persons, the CEO must reject the
application.
New subsection 269YA(4)
provides that the CEO may terminate examination of an application
if he or she is satisfied that, after the time allowed, there is
not enough information to be able to ascertain provisionally all of
the variable factors needed to determine how much duty is
payable.
New subsection 269YA(5) sets
out what the CEO must do if he or she rejects an application or
terminates examination of an application. This includes informing
the applicant of the reasons for rejection or termination and that
the applicant has the right to have the decision reviewed. If the
applicant does not seek a review within the six months from when
the goods were entered for home consumption, the interim duty paid
becomes the duty payable [new paragraph
269YA(5)(c)].
The Customs Act provides for review by the
Review Officer of certain decisions by the Minister or CEO.
Subdivision C of Division 9 of Part XVB deals with review of the
CEO's decisions ('reviewable decisions'). Under section 269ZZN,
reviewable decisions fall into three categories:
-
- negative prima facie decision
-
- termination decision, and
-
- negative preliminary decision.
Item 23 contains
proposed new paragraph 269ZZN(d) that proposes a
fourth category: a rejection decision. There will be two
forms of rejection decision:
-
- where an application does not contain everything it must
contain [proposed new subsection 269YA(2)], and
where an application does not contain enough evidence
[proposed new subsection 269YA(3)], and
-
- where the CEO has decided to terminate examination of an
application [proposed new subsection
269YA(4)].
Section 269ZZU deals with reviews of negative
preliminary decisions. Under this section, the Review Officer must
affirm or revoke the CEO's decisions that are under review.
Item 25 inserts a proposed new section
269ZZUA. This section deals with reviews of the rejection
decisions. Proposed new subsection 269ZZUA(3)
provides that where the Review Officer revokes a rejection
decision, the CEO must resume examination of the application and
make a recommendation to the Minister. This does not, however,
prevent the CEO from terminating an examination if he or she does
not have enough information. Proposed new subsection
269ZZUA(5) provides that the Review Officer's decision
must be based on exactly the same information that the CEO had.
Division 6 of Part XVB of the Customs Act allows
certain exporters to seek accelerated review of dumping duty or
countervailing duty notices. Section 269ZDC explains:
This Division provides for the early review of a
dumping duty notice or a countervailing duty notice on the
application of certain exporters of goods covered by the notice.
The review can be sought when a review of the notice under Division
5 would not be available and is only open to new exporters or
exporters whose exportations were not examined when the notice was
published.
However, Article 9.5 of the WTO Agreement limits
the right to review to 'new exporters'. This states in part:
If a product is subject to anti-dumping duties
in an importing Member, the authorities shall promptly carry out a
review for the purpose of determining individual margins of dumping
for any exporters or producers in the exporting country in question
who have not exported the product to the importing Member during
the period of investigation
The Explanatory Memorandum defines a 'new
exporter' as follows:
A new exporter is defined as an exporter who did
not export goods to Australia at any time during the period:
-
- starting at the start of the investigation period; and
- ending immediately before the CEO places the statement of
essential acts on the public record.(8)
This definition reflects Article 9.5 of the WTO
Agreement.
The effect of Items 27 and
29 is to limit the right to seek a review to new
exporters only.
The definition of 'residual exporter' now in
subsection 269T(1) includes a 'new exporter':
Residual exporter, in relation to a
dumping duty notice or a countervailing duty notice in respect of
goods, means an exporter of goods the subject of the application or
like goods other than a selected exporter, and includes a new
exporter of such goods.
Item 28 repeals this definition
and inserts a proposed new subsection 269T(1) that
explicitly excludes a new exporter as well as a 'selected
exporter'.
Items 30 and
31 replace the references to 'residual exporter'
in subsection 269ZE(1) with references to 'new exporter'.
Division 6A of Part XVB deals with the
continuation of anti-dumping measures. Section 269ZHA explains:
This Division provides for the CEO to alert
interested parties to the anticipated termination of anti-dumping
measures and provide them with an opportunity, before those
measures expire, to apply for a continuation of the measures. The
Division:
sets out the consequences if no application is
made;
outlines the procedure to be followed by the CEO
in dealing with an application and preparing a report for the
Minister;
empowers the Minister, after consideration of
that report, either to decide that the measures will expire or to
take steps to ensure the continuation of the measures.
Section 269ZHB deals with applications for
continuation of anti-dumping measures. Amongst other things, it
provides that the CEO must give notice that dumping duties are
about to expire and invite 'interested parties' to apply to have
the measure continued. Item 33 repeals paragraph
269ZHB(1)(b) and substitutes a new definition of whom the CEO can
invite. Under the current definition, the CEO can invite
'interested parties' The definition of interested parties includes
importers. Item 33 (Pproposed new
paragraph 269ZHB(1)(b)) introduces a more restrictive
measure by limitings the invitation to the person whose application
resulted in the imposition of the anti-dumping measures, and to
'persons representing the whole or portion of the Australian
industry producing like goods to the goods covered by those
measures'. As the Explanatory Memorandum observes, importers are
scarcely likely to seek the continuation of the duty.
Item 1 adds a new
paragraph 5(m) at the end off section 5 of to the
Passenger Movement Charge Collection Act 1978. This
paragraph contains an exemption for a protective security officer
on an aircraft for the purpose of enhancing the security of the
aircraft. Item 1 will have the effect of exempting Air Security
Officers from the PMC levy while on duty as part of the
Commonwealth Air Security Officer Program.
The Explanatory Memorandum generally explains
adequately the Items in Schedule 3. Some, for example,
Items 2, 5, 7 and
10 are necessary to take account of the transition
from the previous provisions of the Customs Act to those provided
in the Trade Modernisation Act, particularly the move from
administrative penalties to the infringement notice system.
Item 1 inserts into subsection
4(1) that contains definitions, a definition of 'monitoring powers'
as defined in section 214AB. This amendment has the effect of
ensuring that the definition of monitoring powers applies to all
sections of the Customs Act and not just subdivision J of Division
1, which deals with powers to monitor and audit.
Item 6 inserts a
proposed new subsection 71H(2A). The effect of
this subsection is that even if a person has made an import entry
but subsequently withdraws that entry, the person can still be
served with an infringement notice.
Similarly, Item 8 adds
proposed new subsection 119B(2A) that provides
that infringement notices can be served in respect of an export
entry, submanifest or outward manifest even if it has been
withdrawn.
On balance, the provisions relating to
anti-dumping probably tend to favour domestic producers in that the
provisions will probably reduce the incidence of dumping. Exporters
in economiescountries in transition may find it difficult to show
that their prices are not indirectly affected by government
policies. The example of China given above where exporters buy
materials from unprofitable state-owned enterprises that are
propped up by bank loans that the banks will never recover
illustrates the difficulties exporters may face. The exporter would
need to know, for example, whether the enterprise supplying inputs
is profitable and, if not, how it manages to survive. The
evidentiary requirements in such cases could be very onerous. It is
thus likely that under the proposed amendments, the Minister would
become increasingly responsible for determining normal value.
However, the evidentiary provisions do not seem to be inconsistent
with Article 6 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994.
On the other hand, there is no doubt that the
semi-reformed nature of economies in transition means that some
prices remain distorted by government action. For example, some
countries continue to keep electricity prices low to limit the
effect on living standards.
-
- Additional information on dumping and subsidisation can be
found on the Australian Customs Service website at
http://www.customs.gov.au/site/index.cfm?nav_id=670&area_id=5
- Explanatory Memorandum, p. 7.
- Mark Davis, 'Anti-dumping shake-up leaves importers fuming',
Australian Financial Review, 8 January 2003.
- See the transcript of the press conference given by the
Attorney General, Hon. D. Williams AM QC MP on 18 December 2001 at:
http://152.91.15.12/www/attorneygeneralHome.nsf/Alldocs/DD54281A46ADACA9CA256B610014649D?OpenDocument&highlight=air%20marshals
- See:
http://search.aph.gov.au/search/ParlInfo.ASP?action=view&item=71&from=browse&path=Committees/Estimates+Committee+Transcripts/2001/LEGAL+AND+CONSTITUTIONAL+LEGISLATION+COMMITTEE/28+May+2001&items=100
- Explanatory Memorandum, p. 7.
- ibid., p. 12.
- ibid., p. 18.
Richard Webb
3 February 2003
Bills Digest Service
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