BILLS DIGEST NO. 19, 2012–13

18 September 2012

Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012

Leah Ferris, Law and Bills Digest Section
Eugenia Karanikolas, Economics Section

The Digest at a Glance

This Bill is the fourth and final tranche of a set of legislation proposing to implement the Government’s reforms to the anti-dumping regime as outlined in Streamlining Australia’s Anti‑dumping System.[1]

The proposed reforms are in response to recommendations put forward by the Productivity Commission’s inquiry into Australia’s anti-dumping and countervailing system.[2] They also take into consideration recommendations made by the Trade Remedies Task Force (TRTF) and the Senate Economics Legislation Committee inquiry into the Customs Amendment (Anti-Dumping) Bill 2011, and other stakeholders’ comments.[3]

In summary, the Bill aims to streamline the legislation and meet international obligations by better aligning Australia’s anti-dumping and countervailing system with the measures outlined in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (ASCM).[4]

The Bill seeks to achieve this aim by:

•       amending certain provisions of Part XVB of the Customs Act 1901 (the Customs Act) that deal with countervailing (anti-subsidy) measures

•       allowing the CEO of Customs and Border Protection to conduct an inquiry into circumvention activities and

•       addressing a potential loophole which may currently allow ‘uncooperative exporters’ to avoid paying the appropriate rate of duty.

Although this set of legislative reforms has received bipartisan support, concerns have been raised about the potential retaliatory action of other countries to Australia’s stricter trade remedies regime and the impact this may have on the country’s long term competitiveness and economic prosperity.

Date introduced:  27 June 2012

House:  House of Representatives

Portfolio:  Home Affairs

Commencement:  Sections 1 to 3 commence on Royal Assent. Schedules 1 to 3 commence on a day to be fixed by Proclamation or the day after the end of a six month period after the date of Royal Assent, whichever is earliest. Items 1 to 7 and item 9 of Schedule 4 commence the day after Royal Assent. Item 8 of Schedule 4 commences immediately after the commencement of Schedule 1 to the Customs Amendment (Anti-dumping Improvements) Act (No. 1) 2012, or on Royal Assent, whichever occurs later. However, item 8 of Schedule 4 does not commence at all if Schedule 1 to the Customs Amendment (Anti‑dumping Improvements) Act (No. 1) 2012 does not commence.[5]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The purpose of the Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012 (the Bill) is to amend certain provisions of Part XVB of the Customs Act[6] that deal with countervailing measures. In particular the purpose of the Bill is to:

•       clarify that a ‘subsidy’ includes a financial contribution, income or price support regardless of whether this support benefits the goods exported directly

•       simplify the requirements for determining a benefit

•       prescribe the process for the Minister to determine the amount of a countervailable subsidy

•       require that material injury determinations be based on facts and not allegations, conjecture or remote possibilities

•       clarify that a countervailing duty investigation must be terminated if the Chief Executive Officer (CEO) of Customs is satisfied that injury to the industry is negligible, regardless of whether subsidisation has occurred

•       introduce a framework to identify and address circumvention activities by enabling the CEO to conduct an inquiry if required and

•       streamline the process for ‘sampling[7]’ and calculating the export and normal value of goods and introduce a new definition of ‘un-cooperative exporter’ to ensure that the appropriate rates of duty are set, to encourage cooperation and ensure that exporters do not gain an advantage by failing to provide information to, or impeding, a relevant inquiry or review.

Background

Basis for Australia’s Anti-dumping System

According to the Productivity Commission:

Dumping is said to occur when an overseas supplier exports a good to Australia at a price below its ‘normal value’ in the supplier’s home market. If dumping causes, or threatens to cause, ‘material injury’ to local producers of ‘like goods’, then remedial action—mainly the imposition of special customs duties—can be taken against the imported goods concerned.

Similarly, countervailing duties can be imposed on imports which benefit from any of a specified group of government subsidies and which cause or threaten material injury to a local industry producing like goods.[8]

The WTO is responsible for determining and administering internationally agreed principles and rules for managing dumping issues, as well as for providing a dispute settlement mechanism.

Two WTO agreements provide the basis for Australia’s anti-dumping system:

•       the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement) prescribes rules for the conduct of anti-dumping investigations and the application of measures to address dumping, including how member countries may: initiate cases, calculate dumping margins, determine injury, enforce remedial measures and review past determinations and

•       the Agreement on Subsidies and Countervailing Measures (the ASCM) regulates measures designed to remedy material injury caused by subsidised imports, along similar lines to the Anti‑Dumping Agreement.[9]

The Customs Act and the Customs Tariff (Anti-Dumping) Act 1975 are the principal statutes relating to anti-dumping.[10]

History of Recent Reforms

The key milestones associated with the development and implementation of the reforms to Australia’s anti-dumping and countervailing system are outlined below.

COAG Communique

The 22nd meeting of the Council of Australian Governments (COAG) on 3 July 2008 ended with a commitment by all Australian Governments to continue national competition reform and, as part of the economy-wide reform agenda, to refer the effectiveness of Australia’s anti-dumping system to the Productivity Commission for review. The COAG communiqué identified Australia’s anti‑dumping system as one of a number of priority areas for competition reform.[11]

Productivity Commission Review

The Productivity Commission’s review was conducted at a time of renewed calls for protection, the pressure of which intensified following the Global Financial Crisis (GFC) and the winding-back of GFC stimulus spending. Trade negotiations between Australia and China to secure a comprehensive free trade agreement further intensified the pressure for a stronger anti-dumping system.[12] The Productivity Commission’s report made 20 recommendations, 15 of which were accepted by the Government.[13] However, as was noted by the Chairman of the Commission, the Government rejected some of the most important recommendations aimed at significantly reforming the system, including the introduction of a “bounded” (presumptive) public interest test. [14] According to the Commission’s recommendation, a ‘bounded’ public interest test would have embodied a presumption that measures will be imposed if there has been dumping or subsidisation that has caused, or threatens to cause, material injury, unless:

·           the imposition of measures would preclude effective choice and competition in the Australian market for the like goods, and the resulting scope for the applicant supplier to exploit market power could not be addressed through application of the lesser duty rule

·           the price of the imported goods concerned after the imposition of measures would still be significantly below competing local suppliers’ costs to make and sell

·           un-dumped or non-subsidised like imported goods are readily available at a comparable price to the dumped or subsidised imported goods

·           prior to the commencement of injurious dumping or subsidisation, the local industry’s share of the domestic market for the goods concerned was low, with that share likely to remain low even if measures were imposed

·           the large majority of the overseas supplier’s output of the goods concerned is exported, with the goods imported into Australia being exported at a price which covers the supplier’s fully distributed costs and a reasonable profit margin (plus the value of any identifiable input subsidies).[15]

Public Interest Test - BlueScope Steel case

The issue of the public interest test is currently receiving some attention as a result of the investigation launched by Customs, on a complaint by BlueScope Steel, into the alleged dumping steel imports from Malaysia, Japan, Korea and Taiwan.[16] Speaking about the case, the Chief Executive of the company said that ‘BlueScope Steel supports free and fair trade and is concerned at the level of “unfair competition” in the Australian steel market.’ He went on to say that anti-dumping is a ‘right countries have under WTO rules, and is not considered an exception to these rules nor a form of protectionism’.[17]

Local steel importers have, however, expressed concerns that the new measures may be used as an instrument to restrict imports and attacked the Government for pursuing policies that favour big industry players. They argue that policies such as these will increase the cost to users while only providing a small benefit to the domestic industry.[18]

Private Member’s Bill and Report by the Senate Economics Legislation Committee

Also relevant in shaping this suite of reforms was a Private Member’s Bill, the Customs Amendment (Anti-Dumping) Bill 2011, introduced in the Senate on 2 March 2011 by Senator Xenophon.[19] 

The majority of the proposals in the Bill were rejected by the Senate Economics Legislation Committee in its report of 22 June 2011.[20] However, the Bill’s proposed amendment to the definition of ‘interested party’ to include trade unions has been incorporated into the Government’s Customs Amendment (Anti-dumping Improvements) Act 2011.[21]

International Trade Remedies Forum (ITRF)

Another source of the reforms to the anti-dumping regime has been the ITRF.[22] This group is a stakeholder body that is made up of 21 manufacturers, producers, importers, industry associations, unions and relevant government agencies. The Government has indicated that it will implement all the recommendations made in the two reports released in December 2011 by the Forum.[23]

Government response

The changes proposed in this set of legislation were jointly announced on 22 June 2011 by the then Minister for Home Affairs and Justice and the Minister for Trade.[24] A policy paper, entitled Streamlining Australia’s Anti-dumping System, which was released in June 2011, contains the background to the proposed changes.[25]

The resultant reforms have been gradually unveiled through a series of legislative reforms as outlined in the Chronology at Appendix 1.

These reforms have been aimed at:

•       improving access to the anti-dumping system by funding the establishment of an International Trade Remedies Adviser to help businesses prepare applications and submissions to anti-dumping cases

•       improving timelines by increasing Customs staff numbers and requiring the Minister to make a decision within 30 days of receiving a relevant report or recommendation

•       improving the decision making process by increasing funding for the use of experts, including forensic accountants

•       providing consistency with other countries by amending the subsidies provisions to align them with those set out by the WTO and expanding the definition of ‘interested party’ to include trade unions and downstream industry

•       enhancing compliance by introducing a framework to make it easier for Customs to identify circumvention activities and

•       improving implementation by establishing the International Trade Remedies Forum to advise on the implementation of the proposed changes.[26]

Position of non-government parties and other interest groups

The proposed amendments are broadly supported by the Coalition and the Australian Industry Group.[27]

The Coalition’s position[28] was expressed clearly by Sophie Mirabella, MP, in her second reading speech on the Bill:

I state again that the coalition supports in broad terms the changes that are proposed in this legislation. Given that this is at least the fourth time in the past year that we have been asked to debate the same general set of government changes to antidumping legislation, I have already made the same point about coalition support a number of times, but I am happy to state yet again that this legislation contains a sensible set of changes and that we are comfortable about supporting them. The coalition has long taken the view that any revisions that can be made to the legislation to sensibly reduce the time and the significant costs imposed on Australian businesses which wish to raise possible antidumping cases for consideration should be regarded as very important.[29]

Press reports indicate that seven major Australian manufacturers consider that the current reforms do not go far enough and are seeking an even stricter anti-dumping regime. These comments were made against the background of recent declines in the Australian manufacturing sector. The Construction, Forestry, Mining and Energy Union reportedly also sought a stronger anti-dumping regime than that proposed by the Government. Other unions have also reportedly expressed similar views.[30]

Concerns about the amendments have been voiced by the Chairman of the Productivity Commission.[31] He has expressed the view that the popularity of “the use of ‘anti-dumping’ duties as a WTO-sanctioned form of protection against ‘unfair trade’” is on the rise and if left unchecked it could compromise our future prosperity. He went on to say that “… notions of unfairness had become so entrenched that retaining some form of anti-dumping system was inevitable, and on balance may serve to prevent something worse”.[32]

This concern about rising instances of non-tariff protectionism in the developed world also came up in the latest G20 Leaders’ Summit in Mexico, where leaders were asked to reaffirm their commitment on trade and investment and to roll back protectionist measures that may have recently arisen.[33]

Committee consideration

At its meeting of 28 June 2012, the Senate Selection of Bills Committee determined that the Bill not be referred to any committee for inquiry and report.[34]

The Senate Standing Committee for the Scrutiny of Bills has no comment on this Bill.[35]

Financial implications

According to the Explanatory Memorandum:

The Australian Government has provided $10.4 million over the forward estimates to be absorbed by Customs and Border Protection for the implementation of the June 2011 reforms to the anti-dumping system of which this Bill forms part.[36]

Main issues

The main issue in this Bill appears to be whether the proposed amendments have the potential to steer Australia’s trade policy along the protectionist path and the long term impact this may have on the country’s competitiveness.

The second issue surrounds the actual changes being proposed as part of the Government’s response to the Productivity Commission’s report and whether they achieve the stated aims and objectives outlined.[37] The major legislative changes that the Government is seeking to introduce are addressed under ‘key provisions’.

The final issue concerns the effect of introducing the new anti-dumping legislation in tranches, as opposed to incorporating all the changes in one amending Bill. While this is not uncommon practice and has its advantages, it can delay the implementation of important reforms and can sometimes mean that proposed amendments in later Bills are seeking to amend provisions that are not yet in force. However, the drafting of these Bills has been well structured and takes into account the staggered enforcement of the different provisions.

Key provisions

The main provisions of the Bill are divided into four schedules:

•       Schedule 1 of the Bill amends the provisions relating to countervailable subsidies

•       Schedule 2 of the Bill introduces new provisions to allow the CEO to conduct anti‑circumvention inquiries

•       Schedule 3 of the Bill provides for additional categories of exporters and a new definition of sampling and

•       Schedule 4 of the Bill sets out a number of minor amendments to the Customs Act.

Schedule 1 - Subsidies

Schedule 1 of the Bill amends the provisions under Part XVB of the Customs Act which deal with countervailable subsidies. These amendments are aimed at changing the legislation to more accurately reflect the text of ASCM.[38]

Item 1 of Schedule 1 to the Bill repeals and replaces the definition of ‘subsidy’ set out under subsection 269T(1) of the Customs Act. Under the current definition, there is a requirement for a financial contribution, in order to be a subsidy, to be made ‘in connection with the production, manufacture or export of [particular] goods’.  Under the proposed definition, it will be sufficient that the financial contribution or income or price support confers a benefit in relation to the goods exported to Australia. Importantly, the new definition will also clarify that a benefit may be conferred either directly or indirectly.[39] The Explanatory Memorandum states that this amendment will better align the text of the definition with Article 1[40] and footnote 36 of Article 10[41] of the ASCM. In fact, Article 1, like the current definition of ‘subsidy’ in subsection 269T(1) of the Customs Act, does not explicitly provide that a subsidy may be ‘indirect’.  However, the amendment proposed by item 1 will clarify that this is the case.  This would appear to reflect the intention behind Article 1, when read in the context of the ASCM as a whole.

Currently, section 269TACC of the Customs Act sets out when a financial contribution or income or price support will be classified as conferring a benefit, as well as providing for the calculation of the amount of countervailable subsidy.

Item 5 repeals and replaces section 269TACC of the Customs Act, with the new section 269TACC only relating to determining whether a benefit has been conferred, with the calculation of the amount of countervailable subsidy being dealt with under proposed section 269TACD. While proposed section 269TACC is similar in effect to current subsections 269TACC(1) - (5), the wording has been changed to better reflect the text of Article 14 of the ASCM.[42]

The provisions relating to the amount of countervailable subsidy will be set out under proposed section 269TACD of the Customs Act, which reflects the broad approach taken in footnote 36 of Article 10 of the ASCM.[43] Currently, the process for calculating the amount of countervailable subsidy depends on the form under which the benefit has been conferred. For example, where the government of a country has made a financial contribution and therefore provided a benefit, the total amount of subsidy attributed to the benefit is equal to the amount provided by the government.[44] Under proposed subsection 269TACD(1), where the Minister is satisfied that a countervailing subsidy has been received, the total amount of the subsidy will be an amount determined by the Minister, in writing. Under proposed subsection 269TACD(2), if the subsidy is not quantified by reference to a unit of the relevant goods (determined by weight, volume or otherwise) the Minister must work out how much of the subsidy is properly attributable to each such unit. This amount is then used to determine the amount of duty payable under a countervailing notice if the Minister decides to impose measures.

Item 7 inserts proposed subsection 269TAE(2AA) into the Customs Act, which provides that the Minister, when determining whether material injury to an Australian industry has occurred, must base his or her decision on facts and not merely on allegations, conjecture or remote possibilities. This new subsection has been included to reflect Article 15.7 of the ASCM.[45]

Subsection 269TAE(2C) of the Customs Act provides for the use of cumulative assessment. When imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the investigating authorities may cumulatively assess the effects of such imports, where it is appropriate to do so. This principle is set out under Article 15.3 of the ASCM.[46] Item 8 of the Bill inserts proposed paragraph 269TAE(2C)(da), which inserts a specific reference to the requirements set out in Article 15.3 into section 269TAE(2C) of the Customs Act.

Item 9 inserts proposed subsection 269TC(10), which allows the CEO to expand an investigation into whether reasonable grounds exist for the publishing of a dumping duty notice or a countervailing duty notice, to include an examination of any new issue that the CEO becomes aware of concerning whether a countervailing subsidy has been received in relation to the goods in question. This new subsection has been added to capture Article 10[47] and footnote 36[48] of the ASCM.[49]

Currently, if paragraph 269TDA(14)(b) of the Customs Act is to be interpreted literally, it would appear that the CEO must find that that a countervailing subsidy has been or may be received before an investigation can be terminated. However, under Article 11.9 of the ASCM the requirement to terminate an investigation if the injury is negligible is not dependent upon whether a countervailing subsidy has been or will be received. Item 12 repeals and replaces paragraph 269TDA(14)(b) of the Customs Act, to ensure that this provision is consistent with Article 11.9 of the ASCM. Under the amended paragraph, the CEO will be required to terminate a countervailable subsidy investigation if the export of the goods in question causes negligible injury, whether or not a subsidy is considered to have been provided.

Schedule 2- Circumvention Activity

Item 6 of Schedule 2 to the Bill inserts proposed Division 5A into Part XVB of the Customs Act. This new Division addresses attempts to circumvent dumping and countervailing duties that have been imposed [50] by allowing the CEO of Customs and Border Security to conduct an anti‑circumvention inquiry in certain circumstances, following the publication of a notice in respect of goods (an original notice).[51]

The Division sets out how and when, applications and requests for the conduct of an inquiry can be made. It also sets out the procedures to be followed by the CEO when dealing with applications or requests and when preparing reports. The Division also empowers the Minister to act after considering a report.[52]

Proposed section 269ZDBB of the Bill sets out the five circumstances where circumvention activity may occur:

•       assembly of parts in Australia-where an importer of the goods subject to dumping duty imports those goods in parts and then assembles them in Australia

•       assembly of parts in a third country-where goods are manufactured in a foreign country that is the subject of a dumping notice, and then exported to a third country to be assembled, and then exported to Australia

•       export of goods though one or more third countries- where an importer of goods subject to dumping duty imports those goods via a third country, in order to have them considered as imports from that third country and avoid the dumping duty imposed

•       arrangements between exporters-where an exporter of goods subject to dumping duty makes an arrangement to export its goods though a second importer, who is not subject to dumping duty, in order to avoid the dumping duty imposed and

•       circumstances prescribed under the regulations.

If an original notice has been published in respect of goods and it is considered that it may be appropriate to amend the notice as a result of a circumvention activity then:

•       a person representing Australian industry (or a portion of Australian industry) has the power to apply to the CEO to conduct an anti-circumvention inquiry[53] and

•       the Minister, where he or she considers it appropriate, may request the CEO to conduct an
anti-circumvention inquiry.[54]

Proposed section 269ZDBD prescribes the form and content of the application and outlines the lodgement requirements.

It is the responsibility of the CEO to consider the application within 20 days of receipt by Customs and decide whether or not to conduct an inquiry. However, if the Minister has requested the CEO to conduct an inquiry, then the CEO must agree to this request and publish a notice indicating that such an inquiry is to be conducted.[55]

Proposed section 269ZDBE sets out the factors that the CEO must consider when examining an application by Australian industry and the procedures to be followed. If the CEO accepts the application or receives a request from the Minister to conduct an inquiry then the CEO must publish an inquiry notice.[56] Proposed section 269ZDBF prescribes what the CEO must consider when formulating a statement of essential facts to be placed on the public record and the timeframes for doing so.

After conducting an anti-circumvention inquiry under this new Division the CEO must report to the Minister on the outcome of any inquiry undertaken.[57] The report must recommend that either the original notice remain or be altered, and if altered, the alterations to be made[58] and must also include a statement of reasons.[59]

Proposed section 269ZDBH sets out the Minister’s powers in relation to an anti-circumvention inquiry. After considering the report of the CEO and any other relevant information, within 30 days (or longer if exceptional circumstances apply) the Minister must publish a declaration stating whether the original notice is to change or remain. As soon as practicable the Minister must inform the affected exporter of the terms of the declaration.[60]

Schedule 3 - Sampling

The proposed changes to Schedule 3 have been introduced to address a potential loophole under the legislation. The main purpose of expanding and clarifying the definitions of different classes of ‘exporter’ is to capture non-cooperative exporters. In support of this purpose, the other proposed changes seek to clarify the process of ‘sampling’ and determine how ‘export prices’ and ‘values of goods’ are attributed to each category of ‘exporter’.

Potential Loophole

In a recent Trade Measures Review Officer decision[61] it was suggested that the legislation could be interpreted to:

mean that non-cooperating exporters are provided with the weighted average dumping margin of fully cooperative exporters and therefore avoid the application of subsections 269TAB(3) and 269TAC(6) [of the Customs Act], which are the provisions intended to deal with non-cooperation in accordance with Article 6.8 of the ADA.[62]

According to the Explanatory Memorandum:

The amendments in this Bill will prevent the possible manipulation of the level of cooperation … by introducing three categories of exporters: cooperative, residual and uncooperative.[63]

This approach is consistent with the approach taken in a number of other jurisdictions.[64]

Different classes of ‘exporter’

Currently, under subsection 269T(1) of the Customs Act, an exporter is either a ‘selected exporter’ or a ‘residual exporter’.[65] Under items 1-4 of Schedule 3 to the Bill, new definitions of ‘cooperative’ and ‘uncooperative exporter’ will be inserted into subsection 269T(1) of the Customs Act and the definition of ‘residual exporter’ will be amended. The definition of ‘selected exporter’ will be repealed.

Under the new definitions:

•       a ‘cooperative exporter’ is an exporter whose goods were examined as part of an investigation, review or inquiry and who is not an ‘uncooperative exporter’ (defined below)

•       a ‘residual exporter’ is an exporter whose goods were not examined as part of an investigation, review or inquiry and who is not an ‘uncooperative exporter’ and

•       an ‘uncooperative exporter’ is an exporter who has failed to cooperate by providing information that the CEO considered was relevant to the investigation, review or inquiry, or who the CEO considers to have significantly impeded the process.

Sampling provisions

Sampling may take place when the number of exporters from a particular country that could be examined under an investigation, review or inquiry under the Customs Act is too large to practically allow for all exports to be examined. Instead, information may be obtained from exporters selected in accordance with the requirements of the Customs Act.[66] The practice of sampling is consistent with Article 6.10 of the WTO Anti-Dumping Agreement and is accepted international practice.

Under the Customs Act, there are currently provisions which provide for the use of sampling in circumstances where it is not possible to gather individual information from each exporter.[67] Item 5 of Schedule 3 to the Bill inserts proposed section 269TACAA, which clarifies and consolidates the existing sampling provisions under the Customs Act and will cover all situations under the Customs Act in which sampling may occur.[68]

Calculating the ‘export’ and ‘normal’ value of goods

Proposed section 269TACAB sets out how the export and normal value of goods is calculated for both ‘uncooperative exporters’ and ‘residual exporters’ in relation to dumping duty notices.[69] The ‘usual’ method for calculating these values is set out under sections 269TAB and 269TAC of the Customs Act.[70]

Under this proposed new section, for ‘uncooperative exporters’ the ‘export price’ and the ‘normal value of goods’ are to be determined by the Minister having regard to relevant information.[71]

For ‘residual exporters’ the export price must not be less than the weighted average for like goods of cooperative exporters from the same country of export and the ‘value’ must not exceed the weighted average for like goods of cooperative exporters from the same country of export.[72]

Concluding comments

In summary, this Bill aims to further align Australia’s anti-dumping and anti-subsidy measures with those of the WTO; streamline and increase the robustness of the process; and address a loophole by defining what constitutes an ‘uncooperative exporter’ so that appropriate rates of duty may be set.

This set of legislation has received support from the Opposition and major interested parties who have all advocated protection of the domestic industry from what is seen as unfair competition.

However, as discussed earlier, there have been some concerns raised both in Australia and overseas about the increased use of non-tariff measures (such as anti-dumping and anti-subsidy measures) and the extent to which such measures wind back free trade.

From these two arguments the conclusion can be drawn that these legislative measures have validity in the context of political economy but may not necessarily pass the test of evidence-based policy. 

Appendix 1

Chronology of events

Date

Action

Outcome

July 2008

Commitment by COAG to continue national competition reform.

The Productivity Commission (PC) to conduct a review of Australia’s anti‑dumping system.

2009/ 2010

The PC finalised its review in December 2009. The report was made public in May 2010.

The PC’s report made 20 recommendations.[73]

March 2011

Senator Xenophon introduces his Private Member’s Bill, the Customs Amendment (Anti-Dumping) Bill 2011.

Key proposed amendments included reversal of the onus of proof to the exporter and inserting a presumption of dumping.[74]

March-June 2011

Senator Xenophon’s Bill referred to Senate Economics Legislation Committee.

The Committee’s report, released in June 2011, recommended the rejection of the majority of the proposed amendments made in Senator Xenophon’s Bill. However, it did support the proposal to amend the definitions of ‘affected party’ and ‘interested party’ to include trade unions.[75]

July 2011

Government introduces the Customs Amendment (Anti-dumping Improvements) Bill 2011. This is the first tranche of amendments to the anti-dumping system. The Bill receives royal assent in October 2011.

The Bill amended the Act to: provide a 30‑day time limit for ministerial decisions on anti-dumping cases; consider impact on jobs and investment when assessing ‘material’ injury; include trade unions in the definition of ‘interested party’; and include full list of actionable subsides provided by the WTO agreement.[76]

November 2011

The second tranche of the legislation, the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011 is introduced. This Bill is still before the Senate.

The purpose of this Bill is to: introduce a new appeals process; allow for extensions of time in which to conduct investigations into anti-dumping practices; establish the International Trade Remedies Forum (ITRF).[77]

November 2011

The Coalition announces its policy on anti‑dumping.

The policy promises to: move responsibility for anti-dumping from Customs to the Department of Industry; reverse the onus of proof; and crack down on uncooperative exporters.[78]

December 2011

The ITRF finalises its reports to the Government.

The ITRF reports made 22 recommendations.[79]

March 2012

The third tranche of legislation, the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 is introduced. This Bill is still before the Senate.

The purpose of this Bill is to: clarify that the CEO of Customs and the Minister have the power to take all facts into account when determining whether a countervailable subsidy has been received if parties fail to provide all relevant information within a reasonable time; enable the level of duties to be recalculated during a continuation inquiry; remove the need to include profit when calculating the ‘normal value’ of a good in its country of origin.

The minister announces that it will accept all of the recommendations made by the ITRF.[80]

March 2012

The minister announces that the Government will accept all of the recommendations made by the ITRF.[81]

June 2012

The final tranche of legislation, the Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012 (the Bill the subject of this digest) is introduced. This Bill passed the House of Representatives on the 15 August 2012 and is now before the Senate. 

The purpose of this Bill is to: further align the provisions dealing with countervailable subsidies with the WTO; introduce a framework to assist Customs in identifying and investigating circumvention activities; define what is an ‘un-cooperative exporter’ and clarify the consequences that may follow if exporter does not co-operate.

June 2012

BlueScope Steel makes a complaint to Customs about steel products imported from Malaysia, Taiwan, South Korea and Japan. This is the first investigation under the new measures.

July 2012

Minister for Home Affairs Jason Clare announced the appointment of John Brumby to lead a feasibility study into the establishment of a stand-alone anti-dumping agency. The report is due by 30 November 2012. The study will look into the benefits and costs of retaining the responsibility for anti‑dumping assessments and investigations with Customs or establishing a new body and transferring the responsibility to it.[82]

July 2012

Appointment of the International Trade Remedies Adviser to help small and medium businesses deal with the new anti-dumping regime.[83]

Appendix 2

Government’s response to recommendations made by the Productivity Commission:

Recommendation

Response

5.1

Introduce a public interest test

Not accept

6.1

Establish a working group to examine the close processed agricultural goods provisions

Agree

6.2

Not adopt the practice of zeroing when calculating normal values

Agree

6.3

Earlier consideration of provisional measures

Agree in principle

6.4

Change arrangements for continuation of measures

Not accept

6.5

Replace the current review of measures and administrative review provisions with an automatic annual review

Not accept

6.6

Modify the basis for collecting anti-dumping and countervailing duties

Not accept

6.7

Replace the current arrangements for revocation of measures with the annual review provisions

Not accept

6.8

Update Australia’s actionable subsidies to align with the latest relevant WTO agreements

Agree

7.1

Retain the broad administrative and decision-making roles of Customs, the Minister and the Trade Measures Review Officer

Agree in part

7.2

Make changes to the current appeal arrangements for anti-dumping decisions

Agree in part

7.3

Allow Customs to seek extensions of the investigation period at any time during an investigation

Agree

7.4

Introduce a 30 day time-limit for the Minister to make decisions

Agree

7.5

Provide adequate resourcing for Customs and Border Protection and the Trade Measures Review Officer

Agree

7.6

Advise the Minister in investigation reports of the details of comparable recent cases in other countries

Agree

7.7

Improve reporting on applications for anti-dumping measures

Agree in part

7.8

Publish the maximum amount of information on the magnitude of individual anti-dumping and countervailing measures

Agree

7.9

Consult with the Australian Bureau of Statistics regarding better access to import data

Agree

7.10

Implement reforms of the anti-dumping system as soon as practically possible

Agree

7.11

Review these reforms five years after implementation

Agree

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ISSN 1328-8091

[1].               Australian Customs and Border Protection Service (ACBPS), Streamlining Australia’s anti-dumping system: an effective anti-dumping and countervailing system for Australia, Canberra, June 2011, viewed 17 July 2012, http://www.customs.gov.au/webdata/resources/files/ACBPSADSPolicyStatement2011.pdf

[2].               Productivity Commission (PC), Australia’s anti-dumping and countervailing system, Inquiry report no. 48, Canberra, 18 December 2009, viewed 16 July 2012, http://www.pc.gov.au/__data/assets/pdf_file/0006/93750/anti-dumping.pdf

[3].               The PC and TRTF recommendations accepted by the Government have all been introduced in the previous tranches of legislation. Although this Bill does not directly respond to any of these recommendations it does seek to address other stakeholder concerns and comments: Australian Customs and Border Protection Service (ACBPS), ‘International trade remedies forum’, ACBPS website, viewed 24 July 2012, http://www.customs.gov.au/site/InternationalTradeRemediesForum.asp; Productivity Commission, op. cit.

[4].               World Trade Organisation (WTO), Agreement on subsidies and countervailing measures, viewed 19 July 2012, http://www.wto.org/english/docs_e/legal_e/24-scm.pdf.

[5].               As at the date of writing this Digest, the Customs Amendment (Anti-dumping Improvements) Bill (No. 1) 2012 was before the Senate.

[6].               Part XVB of the Customs Act deals with the imposition of trade measures in respect of imported goods which are dumped, or subsidised by a countervailable subsidy, the importation of which has caused, or threatens, material injury to Australian industry: Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012, p. 3, viewed 16 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4859_ems_5a6fed4c-fbfb-43d5-aeaf-caff0c0345cb%22 

[7].               ‘Sampling exercises are undertaken where the number of exporters who provide information is so large as to make a determination for each individual exporter impracticable’: J Clare (Minister for Home Affairs) ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012’, House of Representatives, Debates, 27 June 2012, p. 8149, viewed 8 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F3e4e9532-bf3c-4623-bc6b-c0e926ad7cec%2F0019%22

[8].               Productivity Commission, op. cit., p. XI.

[9].               The text of the Anti-Dumping Agreement can be viewed at: http://www.worldtradelaw.net/uragreements/adagreement.pdf

The text of the Countervailing Measures Agreement can be viewed at: http://www.wto.org/english/docs_e/legal_e/24-scm.pdf

[10].               Productivity Commission, op. cit., p. 8.

[11].               More information can be found in L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, Bills Digest, no. 145, 2011–12, Parliamentary Library, Canberra, 2012, viewed 17 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1695783%22

[12].               Ibid.

[13].               A list of the Productivity Commission’s recommendations, and the Government’s response, is set out at Appendix 2.

[14].               G Banks, Industry assistance in a ‘patchwork economy’, Speech, Canberra, 23 November 2011, viewed 18 July 2012, http://www.pc.gov.au/speeches/patchwork-economy

[15].               Productivity Commission, op. cit., p. XXVIII.

[16].               Bluescope is the first complainant under the Government’s new anti-dumping measures.

[17].               L Lamont, ‘Dumping cost local steel makers $50m’, Sydney Morning Herald, 16 June 2012, p. 5, viewed 25 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1715089%22

[18].               A de Kretser, ‘BlueScope the first to test anti-dumping rules’, Australian Financial Review, 21 June 2012, p. 16, viewed 19 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1725468%22

[19].               Customs Amendment (Anti-Dumping) Bill 2011, viewed 24 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs821%22

[20].               Senate Economics Legislation Committee, Customs Amendment (Anti-Dumping) Bill 2011, Report, 22 June 2011, viewed 24 July 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=economics_ctte/customs_amendment_2011/report/index.htm

[21].               The Customs Amendment (Anti-dumping Improvements) Bill 2011 was enacted and received Royal Assent on 17 October 2011, viewed 24 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4615%22 . The Act is available at: http://www.comlaw.gov.au/Details/C2011A00123

[22].               This body was established in the Government’s second tranche of anti-dumping legislation: Customs Amendment (Anti-Dumping Improvements) Bill (No. 2) 2011, viewed 24 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4723%22.

              More information about the body and its reports can be found on the following website: ACBPS, ‘International Trade Remedies Forum’, op. cit.

[23].               J Clare (Minister for Home Affairs), ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012’, House of Representatives, Debates, 21 March 2012, p. 3688, viewed 17 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fcd08e91c-1ffc-4955-a61a-1a9087358780%2F0020%22.

[24].               B O’Connor (then Minister for Home Affairs and Justice) and Dr C Emerson (Minister for Trade), Government combats dumping and helps support local jobs, media release, Canberra, 22 June 2011, viewed 17 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F865936%22

[25].               Australian Customs and Border Protection Service (ACBPS), Streamlining Australia’s anti-dumping system, op. cit.

[26].               Minter Ellison Lawyers, Changes to Australia’s anti-dumping/countervailing regime: overview of key amendments, 29 November 2011, viewed 16 July 2012, http://www.minterellison.com/Pub/A/20111129_antiDumping/

[27].               The Australian Industry Group is one of Australia’s peak industry bodies representing businesses in a range of sectors including manufacturing, telecommunications and transport.

[28].               The Coalition’s policy on anti-dumping includes the following measures: transfer anti-dumping responsibilities from Customs to the Department of Industry; reverse the onus of proof in anti-dumping investigations; commit more funding for anti-dumping investigations; hire an additional 20 specialist anti-dumping investigators; introduce more stringent and rigorous enforcement of deadlines for submissions; crack down on overseas producers who don’t cooperate with anti-dumping investigations; and strengthen enforcement of the ASCM: L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill
(No. 1) 2012, Bills Digest, op. cit., p. 15. 

[29].               S Mirabella, ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012’, House of Representatives, Debates, 15 August 2012, p. 83, viewed 16 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Fe62f1e0d-13c9-446f-9296-82fd78823b75%2F0170%22

[30].               L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, Bills Digest, op. cit.

[31].               It is noteworthy that the Productivity Commission is the body that conducted the review of the anti-dumping system.

[32].               G Banks, Industry assistance in a ‘patchwork economy’, op. cit.

[33].               The Group of Twenty (G20), G20 Leaders Declaration, Leader’s Summit Mexico, 18-19 June 2012, viewed 24 July 2012, http://g20.org/images/stories/docs/g20/conclu/G20_Leaders_Declaration_2012_1.pdf

[34].               Selection of Bills Committee, Report no. 8 of 2012, Senate, Canberra, 28 June 2012, viewed 9 August 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=selectionbills_ctte/reports/2012/rep0812.htm

[35].               Senate Standing Committee for the Scrutiny of Bills, Alert Digest no. 8 of 2012, 22 August 2012, viewed 6 September 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2012/index.htm

[36].               Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012, op. cit., p. 2.

[37].               Australian Customs and Border Protection Service (ACBPS), Streamlining Australia’s anti-dumping system, op. cit.

[38].               World Trade Organisation, Agreement on subsidies and countervailing measures, op. cit.

[39].               In simplified terms, under the new definition, ‘a subsidy is a financial contribution or income or price support which confers a direct or indirect benefit in relation to goods exported to Australia’: Explanatory Memorandum, op. cit., p. 9.

[40].               The Explanatory Memorandum explains that ‘Article 1 of the ASCM ... in defining subsidy does not differentiate between direct and indirectly received subsidies’, ibid.

[41].               Footnote 36 of Article 10 of the ASCM contains a specific recognition of indirect financial contribution, income or price support. This footnote states that ‘the term “countervailing duty” shall be understood to mean a special duty levied for the purpose of offsetting any subsidy bestowed directly or indirectly [emphasis added] upon the manufacture, production or export of any merchandise, as provided for in paragraph 3 of Article VI of GATT 1994’,  World Trade Organisation, Agreement on subsidies and countervailing measures, op. cit.

[42].               Article 14 of the ASCM provides guidance in determining whether a benefit is conferred: Explanatory Memorandum, op. cit., p. 10.

[43].               Explanatory Memorandum, op. cit., p. 11.

[44].               Paragraph 269TACC(6)(a) of the Customs Act.

[45].               Explanatory Memorandum, op. cit., p. 12.

[46].               Article 15.3 states ‘where imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the investigating authorities may cumulatively assess the effects of such imports only if they determine that (a) the amount of subsidization established in relation to the imports from each country is more than de minimis as defined in paragraph 9 of Article 11 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 like domestic product’: World Trade Organisation (WTO), Agreement on subsidies and countervailing measures, op. cit., p. 247.

[47].               Article 10 of the ASCM provides that ‘members shall take all necessary steps to ensure that the imposition of a countervailing duty on any product of the territory of any Member imported into the territory of another Member is in accordance with the provisions of Article VI of GATT 1994 and the terms of the Agreement’: World Trade Organisation (WTO), Agreement on subsidies and countervailing measures, op. cit., p. 241.

[48].               The text of footnote 36 of the ASCM is set out at footnote 41 to this digest.

[49].               ‘Footnote 36 to Article 10 of the ASCM allows the investigating authority to include any subsidy discovered in the course of an investigation into the scope of the investigating regardless of whether that subsidy was specified in the application for countervailing duty’: Explanatory Memorandum, op. cit., p. 12.

[50].               Examples of some of the various forms of circumvention activities which seek to exploit different aspects of the anti‑dumping and countervailing system are found in the Minister’s second reading speech: J Clare (Minister for Home Affairs), ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012’, op. cit., pp. 8148-8149.

[51].               An original notice is a dumping duty notice and/or countervailing duty notice: subsections 269TG(2) or 269TJ(2) of the Customs Act. The publication of a dumping duty and/or countervailing duty notice imposes trade remedies usually in the form of duties on imported goods to offset the effects of material injury to Australian producers of "like goods", caused by dumping or subsidies: Australian Industry Group, ‘International Trade Remedies Advisory Service for SMEs’, website, viewed 14 September 2012, http://www.aigroup.com.au/traderemedies/

[52].               Proposed section 269ZDBA of the Customs Act outlines what the Division is about.

[53].               Proposed subsection 269ZDBC(1) of the Customs Act.

[54].               Proposed subsection 269ZDBC(2) of the Customs Act.

[55].               Proposed subsection 269ZDBE(5) of the Customs Act.

[56].               Proposed subsections 269ZDBE(4) and (5) of the Customs Act.

[57].               Proposed section 269ZDBG of the Customs Act outlines the requirements including recommendations and reasons that must be included in the CEO report.

[58].               Proposed subsections 269ZDBG(1) and (2) of the Customs Act.

[59].               Proposed subsection 269ZDBG(4) of the Customs Act.

[60].               Proposed subsection 269ZDBH(6) of the Customs Act.

[61].               J Clare (Minister for Home Affairs), ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 3) 2012’, op. cit., p. 8149.

[62].               Explanatory Memorandum, op. cit., p. 8.

[63].               Ibid.

[64].               Ibid.

[65].               The Explanatory Memorandum sets out how the different categories under section 269T of the Customs Act will operate, ibid., p. 7.

[66].               Exporters who constitute a statistically valid sample of exporters from a particular country or who are responsible for the largest volume of exports to Australia that can reasonably be examined may be selected: proposed paragraphs 269TACAA(1)(c) and (d) of the Customs Act.

[67].               Subsections 269TACB(8)-(9) of the Customs Act allow sampling to be used in a dumping investigation and subsections 269TACC(8)-(9) of the Customs Act allow sampling to be used in a subsidy investigation.

[68].               Explanatory Memorandum, op. cit., pp. 7 and 27.

[69].               Proposed section 269TACAB of the Customs Act only deals with dumping duty notices. Proposed section 269TAACA introduced by the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 deals with the determination of the countervailable subsidy if there is a lack of cooperation in a relevant investigation, review or continuation inquiry, Explanatory Memorandum, op. cit., p. 29, paragraph 117.

[70].               Section 269TAB prescribes how the ‘export price’ of goods exported to Australia is determined. Section 269TAC prescribes how the ‘normal value of goods’ exported to Australia is determined.

[71].               The ‘export price’ or ‘normal value’ is to be worked out in relation to the investigation, review or inquiry under subsections 269TAB(3) and 269TAC(6) of the Customs Act which provide for these values to be determined by the Minister having regard to relevant information.

[72].               Article 9.4 of the ADA outlines the method for calculating the dumping margin for ‘residual exporters’.

[73].               More information can be found at PC, Australia’s anti-dumping and countervailing system, op. cit.

[74].               Customs Amendment (Anti-Dumping) Bill 2011, viewed 24 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs821%22

[75].               Senate Economics Legislation Committee, Customs Amendment (Anti-Dumping) Bill 2011, Report, 22 June 2011, viewed 24 July 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=economics_ctte/customs_amendment_2011/report/index.htm

[76].               More information can be found in M Priestley, Customs Amendment (Anti-dumping Improvements) Bill 2011, Bills Digest, op. cit.

[77].               More information can be found in L Ferris, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, Bills Digest, no. 149, 2011–12, Parliamentary Library, Canberra, 2012, viewed 17 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1713277%22

[78].               Liberal Party of Australia and the Nationals, The Coalition’s plan to strengthen Australia’s anti-dumping regime, Coalition policy document, 7 November 2011, viewed 24 July 2012, http://liberal.org.au/Latest-News/2011/11/07/Anti-Dumping-Regime.aspx

[79].               More information about the body and its reports can be found on the website, ACBPS, ‘International Trade Remedies Forum’, op. cit.

[80].               More information can be found in L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, Bills Digest, op. cit.

[81].               More information can be found in L Nielson, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, Bills Digest, op. cit.

[82].               J Clare (Minister for Home Affairs and Justice), John Brumby to report on a Commonwealth anti-dumping agency, media release, 4 July 2012, viewed 11 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1756100%22 

[83].               J Clare (Minister for Home Affairs and Justice), International trade remedies adviser appointed to help small and medium businesses with anti-dumping, media release, 9 July 2012, viewed 11 July 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1767187%22