BILLS DIGEST NO. 81, 2014–15              18 March 2015

Customs Amendment (Anti-Dumping Measures) Bill (No. 1) 2015 [and] Customs Tariff (Anti-Dumping) Amendment Bill 2015

Tarek Dale
Economics Section 

Date introduced: 26 February 2015

House:  House of Representatives

Portfolio: Industry

Commencement:  The substantive provisions of both Bills will commence either on a day to be fixed by Proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015 and the Customs Tariff (Anti-Dumping) Amendment Bill 2015, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

The Bills Digest at a glance

The Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015 and the Customs Tariff (Anti-Dumping) Amendment Bill 2015 make multiple changes to Australia’s anti-dumping system. There are six key changes, and a number of other more minor changes.

Structure of the Bills

The Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015 is the primary Bill. It contains 15 parts in one Schedule, with each part reflecting a different change to the Customs Act 1901.

Key changes

•       Part 4: Allowing a cumulative assessment of the impact of dumping from multiple countries, which sets a lower threshold for applying anti-dumping measures.

•       Part 6: In some of the calculations used to determine whether dumping has occurred, the minimum period that must be considered will be reduced from two months to one month.

•       Part 8: The Minister will no longer be able to grant individual exemptions when an applicant seeks an accelerated review. Instead when considering an accelerated review the Minister will only be able to leave the duty unchanged, or apply it at a lower rate. The definition of new exporters is changed, so that potentially a larger number will be able to seek accelerated reviews.

•       Part 12: The Anti-Dumping Review Panel will be able to charge fees for reviews – this will impact both exporters and Australian producers.

•       Part 13: There are a number of changes to the Anti-Dumping Review Panel’s processes, including higher thresholds for applications, and a requirement that there be reasonable ground for reviews. This will impact both exporters and Australian producers.

•       Part 15: The International Trade Remedies Forum will be abolished.

Minor changes

•       Part 1: The deadline for submissions during the Anti-Dumping Commission’s processes will be reduced from 40 days to 37.

•       Part 2: The Anti-Dumping Commissioner can specify how submissions are to be lodged, and anti-dumping notices will be published on the Anti-Dumping Commission’s website, rather than in the Gazette.

•       Part 3: The Anti-Dumping Commissioner will not be able to vary the length of an investigation period.

•       Part 5: Clarifying that in determining the ‘normal value’ of goods, the Minister is not required to apply different methods in a particular order.

•       Part 7: The wording of how a subsidy is defined will be simplified.

•       Part 9: Where a notice comes into effect after an exporter has breached their initial undertaking, the notice will only apply for five years from the date the initial undertaking was accepted. This ensures compliance with Australia’s commitments under World Trade Organisation (WTO) treaties.

•       Part 10: Clarifying that evidence relating to goods exported to Australia before an investigation period cannot be used to determine whether dumping occurred (also in line with Australia’s WTO commitments).

•       Part 11: Clarify that the Minister is able to disregard the lesser duty rule, when a country has not complied with its WTO subsidies notification requirements at least once in the compliance period.[1]

•       Part 14: Applicants for a review will be able to withdraw their applications.

The Customs Tariff (Anti-Dumping) Amendment Bill 2015 reflects a number of these changes in proposed amendments to the Customs Tariff (Anti-Dumping) Act 1975 (Customs Tariff Act). It also contains a minor change which restricts the ability of the Minister to grant retrospective exemption from duties imposed under the Customs Tariff Act.

Structure of the Bills

The Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015 (the Customs Amendment Bill) is the primary Bill. It contains 15 parts in one Schedule, with each part reflecting a different change to the Customs Act 1901.[2] The Customs Tariff (Anti-Dumping) Amendment Bill 2015 (the Customs Tariff Amendment Bill) reflects a number of these changes in proposed amendments in the Customs Tariff (Anti-Dumping) Act 1975 (Customs Tariff Act), and one additional minor change.[3]

Table 1  Structure of the two Bills

Bill

Part

Measure

Customs Amendment Bill, Schedule 1

1

The deadline for submissions during the Anti-Dumping Commission’s processes will be reduced from 40 days to 37.

2

The Anti-Dumping Commissioner can specify how submissions are to be lodged, and notices can be published on the Anti-Dumping Commission’s website, rather than in the Gazette.

3

The Anti-Dumping Commissioner will not be able to vary the length of an investigation period.

4

Allowing a cumulative assessment of the impact of dumping from multiple countries, which sets a lower threshold for applying anti-dumping measures.

5

Clarifying that in determining the ‘normal value’ of goods, the Minister is not required to apply different calculation methods in a particular order.

6

In some of the calculations used to determine whether dumping has occurred, the minimum period will be reduced from two months to one.

7

The definition of ‘subsidy’ will be simplified.

8

The Minister will no longer be able to grant individual exemptions when an applicant seeks an accelerated review. Instead when considering an accelerated review the Minister will only be able to leave the duty unchanged, or apply it at a lower rate. The definition of new exporters is changed, so that potentially a larger number will be able to seek accelerated reviews.

9

Where a notice comes into effect after an exporter has breached their initial undertaking, the notice will only apply for five years from the date the initial undertaking was accepted. This ensures compliance with Australia’s commitments under WTO treaties.

10

Clarifying that evidence relating to goods exported to Australia prior to an investigation period cannot be used to determine whether dumping occurred (also in line with Australia’s WTO commitments).

11

Clarify when the Minister is able to disregard the ‘lesser duty rule’, when a country has not complied with its WTO notification requirements.

12

The Anti-Dumping Review Panel will be able to charge fees for reviews.

13

A number of changes to the Anti-Dumping Review Panel’s processes, including higher thresholds for applications, and a requirement that there be reasonable ground for reviews

14

Applicants for a review will be able to withdraw their applications.

15

The International Trade Remedies Forum will be abolished.

Customs Tariff Amendment Bill, Schedule 1

In addition to consequential changes following from the measures in the Customs Amendment Bill, the Bill removes the Minister’s ability to grant retrospective exemptions from anti-dumping and countervailing subsidy duties that commence prior to the date on which the application for exemption was received.

Background

Basis for Australia’s anti-dumping system

As defined by the Productivity Commission, dumping is:

… when an overseas supplier exports a good to Australia at a price below its ‘normal value’[4] 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[5] 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.[6]

Australia is a WTO member. Australia’s anti-dumping system is based on internationally agreed rules and procedures arising out of two WTO agreements:

•       the Agreement on Implementation of Article IV of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement; ADA) in Annex 1 A to the WTO 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’[7] 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’.[8]

The principal Australian laws dealing with anti-dumping measures are the Customs Act 1901, which sets out the general inquiry process, and the Customs Tariff (Anti-Dumping) Act 1975 (the Customs Tariff Act) which provides for the imposition of anti-dumping and countervailing duties.[9]

The significance of dumping

There are a variety of competing views on the issue of anti-dumping, its fairness in relation to business competition and its impacts on business viability, workers’ job security and consumers. An assessment of the merits of these views is beyond the scope of this Digest. However, briefly stated the key considerations that are common to the debate about anti-dumping include:

•       the consumer benefit of cheaper priced goods and the stimulation of competition and efficiency and

•       potential trade-distortive effects, which may impact on the viability of the Australian manufacturing industry and employment.

Dumping has becoming a hot trade policy issue over the past few years:

… businesses hit by a flood of cheap imports say it costs sales and profits, hurts reinvestment and jobs, stifles opportunity for growth and can destroy a business that can’t compete. They question the quality and safety of dumped imports and say little regard is taken of the high standards of Australian companies on issues such as occupational health and safety, environmental and energy practices, all of which come with a cost.

Fighting can be complex and expensive. It is estimated to cost a minimum of $1 million to run an anti-dumping case. And some companies say that even if they win they are taken back to square one by appeals or the lack of properly punitive penalties.[10]

In early 2014 the Anti-Dumping Commission found that 56 per cent of Italian tinned tomatoes being sold in Australia were sold for below cost price. In response, the Commission imposed a range of duties.[11]

Previous reforms to Australia’s anti-dumping system

Since 2009, there have been several major reviews and reforms to Australia’s anti-dumping system:

•       following a 2008 commitment by the Council of Australian Governments, in 2009 the Rudd Government referred the system to the Productivity Commission for review. The Productivity Commission completed an inquiry into Australia’s anti-dumping system in 2009[12]

•       in June 2011 the then Labor Government released a policy paper and reform package, Streamlining Australia’s Anti-Dumping System, outlining a number of proposed changes to the system.[13] There were a number of changes aimed at facilitating anti-dumping measures that are now incorporated in legislation

•       between July 2011–June 2012 the Government introduced several tranches of legislation:

–      Customs Amendment (Anti-dumping Improvements) Act 2011[14]

–      Customs Amendment (Anti-dumping Improvements) Act (No. 1) 2012[15]

–      Customs Amendment (Anti-dumping Improvements) Act (No. 2) 2012[16]

–      Customs Tariff (Anti-Dumping) Amendment Act (No. 1) 2012[17]

–      Customs Amendment (Anti-dumping Improvements) Act (No. 3) 2012[18]

•       in 2012 the then Government requested the former Premier of Victoria, John Brumby, to undertake a review of anti-dumping issues.[19] This followed concern about an almost threefold increase in anti-dumping claims that had occurred in Australia between 2011–2012.[20] The report made 13 key recommendations including the establishment of a new Anti-Dumping Commission, which was to commence operations from 1 July 2013. Following this report, further legislative changes were introduced:

–      Customs Amendment (Anti-Dumping Commission) Act 2013[21]

–      Customs Tariff (Anti-Dumping) Amendment Act 2013[22]

–      Customs Amendment (Anti-dumping Measures) Act 2013.[23]

Changes to the anti-dumping system since the 2013 election

At the 2013 election, the Coalition’s Policy to Boost the Competitiveness of Australian Manufacturing included plans to ‘strengthen the anti-dumping regime’.[24] This included commitments to:

·          transfer anti-dumping responsibilities from Customs to the Department of Industry;

·          reverse the onus of proof in anti-dumping investigations in line with practices in other international jurisdictions;

·          introduce more stringent and rigorous enforcement of deadlines for submissions;

·          crack down on those overseas producers who don’t cooperate with anti-dumping investigations; and

·          strengthen enforcement of the provisions of the WTO Agreement on Subsidies and Countervailing Measures.[25]

Since the 2013 election, a number of changes have been implemented:

•       the Anti-Dumping Commission (ADC) was transferred from the Australian Customs and Border Protection Service to the Department of Industry under the Customs Amendment (Anti-Dumping Commission Transfer) Act 2013[26]

•       the Minister for Industry has directed the Anti-Dumping Commissioner that, ‘wherever possible, provisional measures be imposed at day 60 of an investigation … When provisional measures are not imposed, the Commissioner will publish a report outlining why a preliminary affirmative determination was not able to be made at that time’[27] and

•       the Department of Industry website also states that the Minister ‘will give a direction to the Anti-Dumping Commissioner on the circumstances in which the Minister would be satisfied that an exporter is uncooperative. This will encourage greater cooperation from exporters, as being considered uncooperative can result in heavier duties being imposed against them’.[28]

In October 2014 the Industry Minister Ian McFarlane said the Government would not follow through with the Coalition’s 2013 election policy to reverse the onus of proof in anti-dumping actions.[29] While in opposition, Mr Abbott explained that:

Once a prima facie case has been established, that they [overseas suppliers] are selling at an uneconomically low price, well then rather than having to prove your case in order to stop it, it'll then be up to the person selling-in to prove that there has been no dumping.[30]

There were concerns that the proposal would be in breach of WTO rules which state that authorities ‘shall not impose an unreasonable burden of proof.’[31]

In a December 2014 press release, the Government announced a number of proposed changes to the anti-dumping and countervailing measures regime.[32] The Bills implement a number of measures, some of which either originate in 2013 election commitments, or were included in the 2014 announcement.

The current process for imposing duties under Australia’s anti-dumping system

Australia’s anti-dumping system is complex. Broadly speaking, there are a few key stages:

•       an application for an investigation:

The anti-dumping and countervailing investigation process generally starts with an application from an Australian industry producing ‘like goods’ to those which the applicant alleges are being dumped and/or subsidised. The Australian industry concerned must demonstrate not only that there is dumping or subsidisation occurring but also that it has suffered material injury as a result.[33]

•       when an investigation by the ADC is completed, a recommendation is made to the Minister[34]

•       the Minister may decide to accept an undertaking from the exporter, or to impose duties, or that neither of these steps is required

•       an interested party can apply to the Review Panel for a review of anti-dumping measures.[35]

The flow-chart below sets out the main processes in Australia’s anti-dumping system, from initial application through to final decision.

Figure 1  Australia’s anti-dumping processes: flow-chart

Source: ADC, Dumping and subsidisation investigation process flowchart, ADC website, accessed 10 March 2015.

The procedures and processes involved in particular stages can be complex. The ADC’s Dumping and Subsidy Manual provides a detailed reference guide for its processes.[36] A recent submission by the Department of Industry to a House of Representatives Committee inquiry includes a short overview, and a particular focus on anti-circumvention inquiries.[37]

The International Trade Remedies Forum

The International Trade Remedies Forum (ITRF) was established by the Customs Amendment (Anti-dumping Improvement) Act (No. 1) 2012.[38] Under the Customs Act, ITRF advises the Minister on the operation of the anti-dumping legislation, and potential improvements.[39]

Membership of the forum consists of a range of government departments, trade unions, industry bodies and Australian producers.[40] The ITRF meets at least biannually, and prepares reports, some of which have provided recommendations subsequently accepted by Government.[41]

Committee consideration

Senate Standing Committee for Selection of Bills

In its report on 5 March 2015, the Senate Standing Committee for the Selection of Bills deferred consideration of the two Bills to its next meeting.[42]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills has not yet reported on either of the two Bills.

Policy position of non-government parties/independents

As at the time of writing this Digest, the Bills have not been debated in the House of Representatives, and the non-government parties and independents have not issued public statements on the two Bills.

Position of major interest groups

Industry groups were broadly supportive of the policy measures as announced by the Minister for Industry, which included some of the measures in the current Bill.[43]

Australian Forest Products Association

The Australian Forest Products Association (AFPA) supported the package of changes announced in December 2014 (which included some measures in the current Bills). AFPA chief executive officer Ross Hampton stated:

We welcome the proposed changes to place a significant onus on foreign exporters to cooperate in anti-dumping investigations.[44]

Australian Industry Group

The Australian Industry Group (Ai Group) also supports the changes. Ai Group chief executive Innes Willox stated:

The new measure to reduce the time from 40 days down to 37 days for businesses exporting to Australia to provide information to the Anti-Dumping Commission - consistent with WTO requirements - is an improvement, as is the ability of the Commission to proceed to investigation when exporters don't cooperate.

Overall, the new measures, if properly implemented, offer a higher degree of support to Australian companies concerned about illegal dumping into domestic markets.[45]

Australian Manufacturing Workers Union (AMWU)

In a media release on 27 February 2015 the AMWU ‘called on the Federal Government to immediately tighten Australia’s anti-dumping laws in the wake of the closure of Australian Paper’s Shoalhaven mill.’[46] National Secretary Paul Bastian stated:

After promising to reverse the onus of proof in anti-dumping cases, the Federal Government has backed away to a much weaker set of anti-dumping reforms.[47]

AUSVEG

AUSVEG supported the policy measures announced. AUSVEG Deputy CEO Andrew White stated:

We are hopeful that these changes will result in the closure of loopholes, and allow Australian growers to compete on a more level playing field against foreign competitors.[48]

PACIA

PACIA, a chemical industry body, was broadly supportive of the policy announcements:

These Federal Government initiatives will make it easier for trade-exposed businesses to access anti-dumping remedies quickly and at low cost … When dumping occurs, timely remedies are critical to prevent continued harm to Australian industry. Measures to strengthen the processing of anti-dumping remedies, including the requirement for all parties to provide information within a specified timeframe, will support efficient, free and fair markets that benefit businesses and consumers.[49]

SPC

SPC was also supportive of the policy measures announced in December. SPC’s Managing Director Peter Kelly stated:

These reforms to our anti-dumping system are a significant step forward for Australian manufacturers and producers.[50]

Financial implications

The Explanatory Memoranda for both Bills identify the same savings:

•       a saving of $0.74 million ‘from 2014–15 to 2018–19 inclusive’, in relation to the Anti-Dumping Review Panel. It is unclear which measures this specifically refers to, but presumably includes both additional fee revenue, less the cost of any conferences the Anti-Dumping Review Panel may choose to organise and

•       a saving of $1.09 million ‘from 2014–15 to 2018–19 inclusive’, in relation to moving from publication of notices in the Gazette and national newspapers to online.[51]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[52]

The Explanatory Memorandum to the Customs Amendment Bill notes that the Bill ‘engages the human right to fair trial and fair hearing’, because of two changes:

•       raising ‘the procedural and legal threshold for parties to seek merits review in anti-dumping matters’ and

•       the introduction of fees for merit reviews by the Review Panel.[53]

However the Explanatory Memorandum concludes that the Bill ‘is compatible with human rights because to the extent that it may limit human rights, those limitations contextually are reasonable and proportionate’.[54]

The Parliamentary Committee on Human Rights has not yet reported on the Bill.

Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015

The primary Bills contains a number of amendments which change features of Australia’s anti-dumping regime, in fifteen different parts. These are set out below.

Part 1: Submission deadlines

Schedule 1, Part 1 of the Customs Amendment Bill reduces certain timelines for submissions and applications to the Anti-Dumping Commission. While the Explanatory Memorandum states that ‘the proposed amendments introduce more stringent and rigorous enforcement of deadlines’, the amendments merely reduce the deadline for submissions (and one application process) to the Anti-Dumping Commission under a number of processes.[55]

Specifically, deadlines are reduced from 40 days to 37 days. This is the minimum allowable under the ASCM.[56] Thus if foreign exporters have not co-operated within 37 days the government and the commission ‘reserve the right to make decisions on the best available information’, which is likely to be from Australian producers who lodged the initial application.[57]

Part 2: Lodgement and publication requirements

Schedule 1, Part 2 of the Customs Amendment Bill makes a number of amendments to the Customs Act. These are set out detail in the Explanatory Memorandum.[58] Broadly speaking, their effect in relation to a number of ADC processes is to:

•       enable the Commissioner to specify how anti-dumping duty applications are lodged and withdrawn (items 16, 20-21, 23-25, 30, 35-36, 40, 44) so as to consolidate these stipulations

•       specify when applications or notices of withdrawals are taken to have occurred (items 22, 26, 31, 41 and 45)

•       enable the ADC and Review Panel to publish announcements on their websites, replacing the current legislative requirements for public announcements (primarily in the Gazette and national newspapers; items 17-19, 27-29, 32-34, 37-39, 42-43, 46-47, 48-54)

•       and make various technical and consequential amendments (items 13-15).

Part 3: Length of investigation period

Schedule 1, Part 3 of the Customs Amendment Bill inserts proposed subsection 269TC(5A), which clarifies that the Commissioner cannot vary the length of an anti-dumping investigation period once that period has been specified in a notice issued by the Commissioner under subsection 269TC(4).

The ADC’s Dumping and Subsidy Manual states:

The investigation period is generally the 12 months preceding the initiation date and ending on the most recently completed quarter or month (emphasis added).[59]

That is, the ‘investigation period’ does not commence when the ADC actually launches an investigation. Instead, the term refers to the period that will be examined by the ADC to determine whether dumping occurred. 

Part 4: Cumulative assessment of injury or hindrance

Summary

In short, Schedule 1, Part 4 of the Customs Amendment Bill enables the Anti-Dumping Commissioner to assess the cumulative impact of exportation of goods to Australia from multiple countries when determining whether the injury to Australian industry is negligible (and in turn, whether to terminate an investigation). This provides a lower threshold than the current legislation under which cumulative impacts are not taken into consideration. This means that cases which previously might have been terminated because the injury to Australian industry was negligible in relation to individual countries can now continue, where the cumulative injury is not negligible. This potentially offers greater protection for Australian industry.

Cumulative assessment

Subsection 269TDA of the Customs Act sets out a number of circumstances in which it is mandatory for the Anti-Dumping Commissioner to terminate an investigation.[60] Among these, current subsections 269TDA(13) and 269TDA(14) specify that the Commissioner must terminate a dumping or countervailable subsidy investigation where ‘negligible’ injury is caused by the exports.[61]

While the Anti-Dumping Agreement (ADA) defines specific thresholds in relation to dumping margins and volumes, the agreement does not specify a threshold for negligible injury.[62]

Item 62 in the Customs Amendment Bill inserts proposed subsection 269TDA(14B), which requires the Commissioner, when considering whether the injury from dumping or subsidies is negligible, to ‘consider the cumulative effect of exportation of goods to Australia from two or more countries’.[63] To be included in the cumulative effect, the exports must:

•       each be the subject of an investigation, with a substantially overlapping or identical investigation period

•       have a dumping margin of at least two per cent and non-negligible volumes (for dumped goods)

•       have a non-negligible countervailable subsidy and non-negligible volumes (for countervailable subsidies).[64]

The Commissioner must also be ‘be satisfied that’ it is appropriate to consider the cumulative effect of the goods, taking into consideration the impact of competition between goods from different exporters, and from domestic Australian producers.[65]

The Explanatory Memorandum states that these conditions match those that the Minister may consider under subsection 269TAE(2C) of the Customs Act in ‘deciding whether or not to impose dumping and/or countervailing duties’.[66] In fact, subsection 269TAE(2C) of the Customs Act sets out the mandatory elements which must be taken into account for the Minister to be satisfied that considering the cumulative effect of exports is appropriate. Specifically, paragraph 269TAE(2C)(e) requires that, in determining the effect of the exportation of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that:

it is appropriate to consider the cumulative effect of those exportations having regard to:

(i) the conditions of competition between those goods, and             

(ii) the conditions of competition between those goods and like goods that are domestically produced.[67]

Technical and consequential amendments

Other items in Schedule 1, Part 4 of the Customs Amendment Bill make various amendments to incorporate the cumulative assessment of injury into the Customs Act.

Current subsection 269TDA(13) of the Customs Act specifies that, during the course of an investigation, if the Commissioner is satisfied that exports from a particular country cause negligible injury, then the Commissioner must terminate the dumping investigation in relation to that country. Subsection 269TDA(14) applies a similar test in relation to countervailable subsidy investigations.

Proposed subsection 269TDA(13A), inserted by item 60 of the Customs Amendment Bill, requires that where an individual country has been assessed as contributing to a cumulative non-negligible injury under proposed subsection 269TDA(14B), then the test under 269TDA(13) does not apply; instead, the negligible injury tests applies to the group of countries as a whole. That is, a dumping investigation into exports that cumulatively cause injury is not to be terminated in relation to individual countries even if the injury from that specific country is negligible. Where the cumulative injury caused by exports from multiple countries under investigation is negligible, then the investigation must be terminated. Proposed subsection 269TDA(14A) makes a similar change in relation to investigation of countervailable subsidies.

Part 5: Determining the normal value of goods

Schedule 1, Part 5 inserts a clarification that in determining the ‘normal value’ of goods (which is used as a reference point in the Anti-Dumping Commission’s processes), the Minister is not bound to apply particular measures in a specific order.

The Explanatory Memorandum states that ‘This amendment will make it clear that there is no hierarchy for the methods available to determine a normal value’.[68]

Part 6: Measuring dumping during an investigation period

Schedule 1, Part 6 of the Customs Amendment Bill modifies how the weighted-average method is applied to parts of an investigation period, in determining whether dumping has occurred. Section 269TACB of the Customs Act specifies the different methods of calculation which may be used in assessing whether dumping has occurred, that is, whether the good’s export price to Australia is below that good’s normal value. These are identified in the ADC’s Dumping and Subsidy Manual as:

·          compare the weighted average of export prices over the investigation period with the weighted average of corresponding normal values over that period;

·          apply the weighted average method to parts of the investigation period;

·          compare the export prices determined in respect of individual transactions over the investigation period with corresponding normal values in the same period;

·          combine the weighted average with the transaction to transaction method, or (in rare circumstances);

·          compare the weighted average normal value with the individual transaction export prices.[69]

However, ‘[o]nly in rare circumstances would the Commission deviate from determining dumping margins using the weighted average approach’.[70]

Item 69 of the Customs Amendment Bill adjusts the minimum period of comparison to one month, rather than two months. This is relevant to comparison methods two and four in the list above. The Explanatory Memorandum states that:

The objective of this amendment is to reduce the minimum time that each part of an investigation must take to complete [applying the weighted average method to parts of an investigation period, or combining the weighted average normal value with the transaction to transaction method]. This amendment is intended to enable a more flexible approach when working out whether or not dumping has occurred and the level of dumping …[71]

To the extent that a one-month rather than two-month minimum lowers the threshold and makes findings of dumping easier, it will provide a greater degree of protection for Australian industry. However it appears that the weighted average method (not impacted by this change) is the primary method used by the ADC.

Part 7: Definition of a subsidy

Schedule 1, Part 7 of the Customs Amendment Bill changes the wording of how a subsidy is defined. Currently, subsection 269TACC(2) of the Customs Act specifies that:

A direct financial payment received from any of the following is taken to confer a benefit:

(a)                a government of a country;

(b)                a public body of a country;

(c)               a public body of which a government of a country is a member;

(d)                a private body entrusted or directed by a government of a country or by such a public body to carry out a governmental function.

Subsection 269TACC(3) then provides guidelines which ‘the Minister must have regard to’ in determining whether a financial contribution confers a benefit. Essentially, this subsection states that for contributions from the entities listed in 269TACC(2), a benefit is only conferred if an investment, loan, or other financial contribution is made on terms more favourable than those available through comparable private market channels, or ‘for less than adequate remuneration’.

Proposed subsection 269TACC(2) replaces the assumption that a direct financial contribution from a government entity confers a benefit, instead specifying that:

A financial contribution is taken to confer a benefit if it is provided on terms that are more advantageous than those that would have been available to the recipient on the market.

To the extent that this change captures a wider range of potential subsidies (broader than the four categories in the current subsection 269TACC(2)), it offers greater protection for Australian industry.

Part 8: Process for accelerated reviews

Schedule 1, Part 8 of the Customs Amendment Bill makes a number of changes to the process under which new exporters can seek an accelerated review of dumping or countervailing duty notices. Under the current legislation, a new exporter may apply for an accelerated review, and the Minister may choose to:

•       leave the duty unaltered

•       apply it ‘as if different variable rates had been fixed’ (potentially changing the rate of the duty) or

•       ensure that it does not apply to the applicant.[72]

Proposed paragraph 269ZG(3)(b), inserted by item 77 of the Customs Amendment Bill ‘removes the Minister’s ability to declare that a dumping duty notice or countervailing duty notice not to apply to the applicant’.[73] Instead, under the changes proposed in the Bill the Minister will only be able to either leave the duty unaltered, or change the variable rates. This will reduce the incentives for new exporters to seek accelerated reviews. Proposed paragraph 269ZG(1)(b), inserted by item 76 of the Customs Amendment Bill reflects this change in restricting the Commissioner’s options in providing recommendations to the Minister, and item 75 is another consequential amendment reflecting this change.

A number of other changes are also included in Part 8. Item 74 amends the definition of a ‘new exporter’; by narrowing the period used in the definition. Currently subsection 269T(1) defines a new exporter as not exporting between the beginning of the investigation period, and the statement of essential facts.

While the investigation period is specified by the Commissioner, it is typically set to be ‘the 12 months preceding the initiation date and ending on the most recently completed quarter or month’.[74] The statement of essential facts, under subsection 269TDAA(1), must be ‘within 110 days of the initiation of an investigation’. As explained above in relation to Part 3 of Schedule 1 of the Bill, the terminology used in this area is somewhat confusing, as the ‘investigation period’ does not commence with the initiation of the investigation. Instead, the term refers to the period that will be examined by the ADC to determine whether dumping occurred. 

Item 74 replaces the definition of a ‘new exporter’, restricting the timeframe to exporters who did not export ‘at any time during the investigation period in relation to the application’. Compared to the previous definition, for most twelve month investigations this will result in a shorter exclusion period. Potentially, exporters who began exporting a particular good after the end of the investigation period, but before the statement of essential facts, will now be able to qualify as ‘new exporters’, which previously would not have been the case. This will potentially enable a larger number of exporters to appeal as ‘new exporters’.

Part 9: Period during which notices remain in force

Summary

Schedule 1, Part 9 of the Customs Amendment Bill ensures that a notice, applied after an undertaking has been breached, only applies up to the limit of the original five year time-frame (starting with the original undertaking). This ensures Australia is in compliance with its WTO commitments.

Investigations and undertakings

Under the current framework, where an investigation is underway but before a notice is published, the Minister may accept an undertaking from an exporter. An undertaking is:

… an agreement between the Minister and the exporter that the exporter will conduct future export trade in a manner that will avoid causing or threatening material injury to the Australian industry, or materially hindering the establishment of the industry.[75]

Where an undertaking is accepted, then the investigation relating to an exporter is suspended.[76] If the undertaking is breached, then the investigation may be resumed.[77]

The five year time-limit

Under Australia’s WTO commitments, anti-dumping measures may only last for five years, regardless of whether the form of the measure changes during that period.[78] Subsection 269TM of the Customs Act specifies the period for which notices and undertakings remain in force:

•       a notice lasts for five years after the day it is published, unless otherwise revoked

•       an undertaking lasts for five years after the day it is entered into, unless it is specified to expire earlier.

To ensure compliance with Australia’s WTO commitments, Schedule 1, Part 9 of the Customs Amendment Bill amends section 269TM of the Customs Act to ensure that where an investigation is resumed after an undertaking is breached, then any notice resulting from that investigation lasts for five years from the day the undertaking was accepted.[79] This ensures that the total period that anti-dumping or countervailing measures apply (unless a continuation inquiry is completed) is five years, in line with Australia’s WTO commitments.

Part 10: Dumping prior to the investigation period

When imposing dumping or countervailing duties, under the Customs Act the Minister must have regard to ‘material injury’ to an Australian industry.[80] Under the current legislation, the Minister may examine periods prior to the investigation period in determining whether material injury has been caused.[81]

However, under Australia’s current WTO commitments, assessment of whether dumping or countervailable subsidisation occurred must only be in relation to the investigation period:

Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the ASCM require that injury be based on positive evidence and an objective examination of the volume of dumped/subsidised goods and the consequent impact on domestic markets … The WTO agreements further require that dumping or subsidisation must be determined in relation to goods exported during the investigation.[82]

Item 83 in Schedule 1, Part 10 therefore inserts proposed subsection 269T(2AD), which clarifies that an examination of periods prior to the investigation does not allow a determination that dumping has occurred prior to the investigation period. The Explanatory Memorandum states:

As dumping is not determined for exports prior to the investigation period no causative link could be found and no finding necessary to impose measures could be made. As the current wording … could be read to allow for material injury to be examined that is not causatively linked to dumping, it is necessary to clarify that such injury [occurring before the investigation period] cannot be linked to dumping.[83]

Part 11: Notification of subsidies

The Minister is able to disregard the lesser duty rule (used in determining what anti-dumping or countervailing duty applies) in certain cases.[84] One of those cases is where the government of the exporting country has not complied with specific requirements under the ASCM.[85]

Schedule 1, Part 11 replaces existing paragraph 269TJ(3BA)(a) with more specific text. Table 2 below highlights the minor amendments.

Table 2  Current and proposed 269TJ(3BA)(a)

Current

Proposed [emphasis added]

the country of export has not complied with Article 25 of the Agreement on Subsidies and Countervailing Measures for the compliance period

the government of the country of export has not submitted notification of its subsidies, as mentioned in paragraph 1 of Article 25 of the Agreement on Subsidies and Countervailing Measures, at least once in the compliance period

The requirements under Article 25 of the Agreement on Subsidies and Countervailing Measures, broadly speaking, are that World Trade Organisation members notify of subsidies by 30 June each year, following specific guidelines.[86]

Part 12: Fees for reviews by the Review Panel

Schedule 1, Part 12 of the Customs Amendment Bill amends the Customs Act to enable the Minister to set, by legislative instrument, scaled fees for different kinds of applications or different applicants, for reviews undertaken by the Anti-Dumping Review Panel.

The Explanatory Memorandum states that this will ‘ensure that businesses seriously consider the merits of their appeal before applying and help to offset the costs of administering the merits review function’.[87]

The Minister stated in his second reading speech that ‘We have also considered the impact of the fee on smaller businesses, with small and medium-sized businesses applicable for a reduced fee when seeking review’.[88] However, the Bill in its current form merely specifies that the Minister may set fees by legislative instrument, but does not actually require any concessional treatment for small business. It appears that this will be dealt with in the legislative instrument prescribing the fees, which the Bill specifies can prescribe different fees for different applicants.

As fees will be charged for all review applications (by both exporters and Australian producers), it is unclear whether this measure is likely to increase or reduce the protection available to Australian industry.

Part 13: Conduct of reviews by the Review Panel

Summary

Schedule 1, Part 13 of the Customs Amendment Bill amends the Customs Act to make a number of changes to the Review Panel’s processes in reviewing decisions by the Minister or the Commissioner. Broadly speaking, these are:

•       the Anti-Dumping Review Panel will specify its own forms and application processes (item 92)

•       more detailed information is required in applications for reviews (items 93-95 and 104-106)

•       the Anti-Dumping Review Panel can only conduct reviews on reasonable grounds (items 97 and 108)

•       the Review Panel can hold conferences prior to starting or during a review (items 98 and 109)

•       the Commissioner may make submissions to reviews (item 100)

•       that the Review Panel can only make new decisions or recommendations for decisions that are materially different from the decision under review (item 102 and 117) and

•       the Review Panel can seek further information from the Commissioner, and must notify particular entities or make public announcements when reviewing certain decisions (item 109).

To the extent that these changes raise the threshold for reviews, they lower the number of anti-dumping decisions which may be reversed. This puts in place a higher threshold that will apply to both exporters and Australian producers. It is unclear whether this is likely to increase or reduce the protection available to Australian industry.

Detailed amendments

Item 92 amends section 269ZY of the Customs Act to shift responsibility for specifying the forms and process for review applications from the Commissioner to the Anti-Dumping Review Panel.

Items 93 and 104 increase the information required in applications for reviews (consequential changes are in items 94-95 and 105-106).

Section 269ZZG, as amended by items 94 to 97 sets out the circumstances in which the Review Panel may reject an application–basically where the Panel is not satisfied:

•       that the applicant has set out reasonable grounds for why the original decision is not the correct or preferable one 

•       that the ‘proposed decision’ put forward by the applicant under proposed paragraph 269ZZE(2)(b) (inserted by item 93) is supported by the application, or

•       that the proposed decision is materially different from the decision under review.

If the Review Panel does not reject the application on one of these bases, but considers that only some of the grounds put forward by the applicant are reasonable grounds for considering that the reviewable decision may not be the correct or preferable decision, it only has to consider the reasonable grounds (item 97). Item 108 creates a similar requirement in relation to proposed subsection 269ZZQA.

Items 98 and 109 (proposed sections 269ZZHA and 269ZZRA) enable the Review Panel to conduct conferences to seek additional information.

Item 100 enables the Commissioner to make submissions to the Review Panel.

Item 102 restricts the Review Panel to making recommendations which are materially different from the reviewable decision. Item 117 creates a similar requirement when reversing decisions made by the Commissioner.

Item 109 enables the Review Panel to seek further information from the Commissioner when reviewing decisions made by the Commissioner. Item 109 also inserts proposed section 269ZZRC, which requires the Review Panel to give notice when conducting certain reviews, and make a public notice when reviewing a termination decision.[89] These changes in the review process would appear to be aimed at improving the openness and transparency of the process.

Technical and consequential changes

A number of other minor technical or consequential changes are included (items 96, 99, 101, 103, 107, 110-116, 117-124).

Part 14: Withdrawal of applications for a review

Schedule 1, Part 14 of the Customs Amendment Bill inserts proposed subsections 269ZZF and 269ZZQAA, which enable applicants for a review of decisions by the Minister or Commissioner to withdraw the application for a review.

Part 15: Abolition of the International Trade Remedies Forum

The International Trade Remedies Forum (ITRF) was ‘initially established in August 2011’, with enacting legislation coming into effect in June 2013.[90] The ITRF:

… brings together representatives from Australian manufacturers and producers, importers, unions, and relevant Government agencies. The ITRF provides high-level strategic advice and feedback to the Government on the implementation and monitoring of significant and ongoing reforms to Australia’s anti-dumping system.[91]

The ITRF meets at least biannually, and prepares reports, some of which have provided recommendations subsequently accepted by Government.[92]

Schedule 1, Part 15 of the Customs Amendment Bill abolishes the ITRF, by abolishing Part XVC of the Customs Act. The Minister stated in his second reading speech that:

… this Bill also reduces red tape by removing the legislative establishment of the International Trade Remedies Forum, which is the government's anti-dumping advisory body. The forum, as it is currently legislated, binds the government to a rigid and restricted method for consulting stakeholders. This government believes that a more flexible arrangement will allow a wider range of stakeholders to be consulted on the operation and reform of Australia's anti-dumping system.

Instead, the government is committed to ensuring a broad range of stakeholders are able to bring their views on the administration and reform of the anti-dumping system to the government. Flexible consultation ensures important issues can be raised in a timely manner and stakeholders are afforded the opportunity to be heard by the government.[93]

A December press release by the Minister stated that the ITRF would be replaced with ‘a smaller, more flexible industry advisory committee’:

The new industry advisory committee won’t be legislated and will have greater flexibility around the scope of work and meeting schedules – membership for the board hasn’t yet been decided.[94]

Customs Tariff (Anti-Dumping) Amendment Bill 2015

While the Customs Amendment Bill contains the majority of changes, a small number of consequential changes are included in the Customs Tariff Amendment Bill. These match changes in the Customs Amendment Bill:

•       item 1 amends the wording of paragraph 8(5BAAA)(c) of the Customs Tariff (Anti-Dumping) Act 1975 (the Customs Tariff Act), to better specify when the failure of another government to notify of its subsidies enables the Minister to disregard the lesser duty rule (see ‘Part 11: Notification of subsidies’, above).[95] Similar changes are made in items 8, 9 and 13

•       items 2-3, 5-6, 10-11, 14 and 16 change references in the Customs Tariff Act to publication in the Gazette, to publication on the ADC’s website. This matches changes in the Customs Amendment Bill (see ‘Part 2: Lodgement and publication requirements’, above).

The Bill also makes minor changes to retrospective exemptions. Currently the Minister may specify that certain goods are exempt from interim, dumping or countervailing duties in particular circumstances. Items 4, 7, 12 and 17 specify that where an exemption is granted in response to an application for exemption, the instrument of exemption cannot take effect on a date earlier than the exemption application, limiting the extent to which the exemption can be retrospective.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              The lesser duty rule refers to the use or imposition of an amount of ‘dumping or countervailing duty (based on the non-injurious price) less than the full dumping or subsidy margin, where the lesser amount is considered sufficient to remove the material injury caused by the dumping or subsidisation’ (Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, p. 72).

[2].              Customs Act 1901, accessed 17 March 2015.

[3].              Customs Tariff (Anti-Dumping) Act 1975, accessed 17 March 2015.

[4].              Section 269TAC(1) of the Customs Act provides that the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the ordinary course of trade for home consumption in the country of export, in sales that are arms length transactions by the exporter, or if like goods are not so sold by the exporter, by other sellers of like goods i.e. a constructed price. An imported good will also be considered to be offered below normal value if it is sold at a price in the Australian market which is below its costs of production. See GATT 1994 (the Anti-Dumping Agreement), Article VI, 1(b)(ii), accessed 16 March 2015.

[5].              In simple terms, a countervailing duty (also called an anti-subsidy duty) is an import duty imposed on goods by an importing country after an investigation which finds that an exporting country has directly or indirectly subsidised those exports, thus resulting in a (threatened) material injury to a domestic firm or industry. These duties are imposed under WTO rules and their aim is to offset the injurious effects of the countervailable subsidies on the affected domestic firm or industry (Productivity Commission (PC), Australia’s anti-dumping and countervailing system, Inquiry report 48, PC, 18 December 2009, pp. XI-XII, accessed 10 March 2015).

[6].              PC, Australia’s anti-dumping and countervailing system, op. cit., p. XI.

[7]              Ibid., p. 8; Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the Anti-Dumping Agreement’), contained in Annex 1A of the Marrakesh Agreement establishing the World Trade Organisation, opened for signature 15 April 1994, ATS [1995] No. 8 (entered into force 1 January 1995).

[8].              Ibid., p. 8; Agreement on subsidies and countervailing measures, contained in Annex 1A of the Marrakesh Agreement establishing the World Trade Organisation, opened for signature 15 April 1994, ATS [1995] No. 8 (entered into force 1 January 1995).

[9].              An anti-dumping duty is a duty on imports of a particular good from a specified country imposed so as to neutralise the harm being caused by the dumping of that good to the domestic industry of the importing country. Article VI of the GATT 1994 allows anti-dumping duties against dumped goods, equal to the difference between their export price and their normal value, if dumping causes injury to producers of competing goods. In contrast, a countervailing duty is levied on an imported good to offset any direct or indirect subsidy provided in relation to that imported good so as to offset the (threatened) material injury to a domestic firm or industry caused by that subsidy.

[10].              P Hudson, ‘Cabinet set to dump key vow’, The Australian, 23 June 2014, p. 14, accessed 16 March 2015.

[11].              M Malcolm, ‘Anti-dumping regime joins the real world’, The Sydney Morning Herald, 17 December 2014, p. 19, accessed 16 March 2015.

[12].              Council of Australian Governments (COAG), Communique, COAG Meeting, Sydney, 3 July 2008, p. 4; PC, Australia’s anti-dumping and countervailing system, op. cit.

[13].              Australian Customs and Border Protection Service (ACBPS), Streamlining Australia’s anti-dumping system: an effective anti-dumping and countervailing system for Australia, ACBPS, June 2011, accessed 16 Mach 2015.

[14].              Customs Amendment (Anti-dumping Improvements) Act 2011, accessed 10 March 2015.

[15].              Customs Amendment (Anti-dumping Improvements) Act (No. 1) 2012, accessed 10 March 2015.

[16].              Customs Amendment (Anti-dumping Improvements) Act (No. 2) 2012, accessed 10 March 2015.

[17].              Customs Tariff (Anti-Dumping) Amendment Act (No. 1) 2012, accessed 10 March 2015.

[18].              Customs Amendment (Anti-dumping Improvements) Act (No. 3) 2012, accessed 10 March 2015.

[19].              J Brumby, Review into anti-dumping arrangements, 2012, accessed 10 March 2015.

[20].              G Winestock, ‘Abbott’s anti-dumping pledge may break WTO rules’, The Australian Financial Review, op. cit.

[21].              Customs Amendment (Anti-Dumping Commission) Act 2013, accessed 10 March 2015.

[22].              Customs Tariff (Anti-Dumping) Amendment Act 2013, accessed 10 March 2015.

[23].              Customs Amendment (Anti-dumping Measures) Act 2013, accessed 10 March 2015.

[24].              Liberal Party of Australia and the Nationals, The Coalition’s policy to boost the competitiveness of Australian manufacturing, Coalition policy document, Election 2013, p. 12, accessed 10 March 2015.

[25].              Ibid., pp. 12–13.

[26].              Customs Amendment (Anti-Dumping Commission Transfer) Act 2013, accessed 10 March 2015; see also E Karanikolas, Customs Amendment (Anti-Dumping Commission Transfer) Bill 2013, Bills digest, 31, 2013–14, Parliamentary Library, Canberra, 2013, accessed 10 March 2015.

[27].              Department of Industry and Science, ‘Levelling the playing field – changes to Australia’s Anti-dumping laws’, Department of Industry website, accessed 10 March 2015.

[28].              Ibid.

[29].              R Harris, ‘Anti-dumping to be made “easier, more effective"’, says Ian Macfarlane’, The Weekly Times (online edition), 29 October 2014, accessed 16 March 2015.

[30].              ‘Prime Minister Kevin Rudd MP and Tony Abbott MP have their second 2013 Election Debate from Rooty Hill’, ABC News 24, Australian Broadcasting Corporation (ABC), 28 August 2013, accessed 16 March 2015.

[31].              World Trade Organization (WTO), Part 1: Article 2, Determination of Dumping, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, accessed 16 March 2015.

[32].              I Macfarlane (Minister for Industry) and B Baldwin (Parliamentary Secretary to the Minister for Industry), Levelling the playing field for Australian manufacturers and producers, media release, 15 December 2014, accessed 16 March 2015.

[33].              Anti-Dumping Commission (ADC), ‘How is an investigation conducted?’, ADC website, accessed 10 March 2015.

[34].              ADC, ‘What happens when an investigation is completed?’, ADC website, accessed 10 March 2015.

[35].              ADC, ‘What is a review of measures’, ADC website, accessed 10 March 2015.

[36].              ADC, Dumping and Subsidy Manual, ADC, December 2013, accessed 16 March 2015.

[37].              Department of Industry, Submission to House of Representatives Standing Committee on Agriculture and Industry, Inquiry into Australia’s Anti-Circumvention Framework in Relation to Anti-Dumping Measures, 2014, accessed 16 March 2015. ‘An anti-circumvention inquiry is an inquiry into whether certain activities are occurring with the intention of avoiding or reducing dumping or countervailing duties’ (ADC, ‘What is an anti-circumvention inquiry?’, ADC website, accessed 18 March 2015).

[38].              Customs Amendment (Anti-dumping Improvement) Act (No. 1) 2012, accessed 10 March 2015.

[39].              Customs Act 1901, subsection 269ZZYC, accessed 10 March 2015.

[40].              ADC, ‘Members of the ITRF’, ADC website, accessed 10 March 2015.

[41].              Customs Act 1901, subsection 269ZZYG; ADC, ‘ITRF working group reports’, ADC website, accessed 10 March 2015.

[42].              Senate Selection of Bills Committee, Report No. 2 of 2015, The Senate, Canberra, 5 March 2015, accessed 16 March 2015.              

[43].              I Macfarlane (Minister for Industry) and B Baldwin (Parliamentary Secretary to the Minister for Industry), Levelling the playing field for Australian manufacturers and producers, op. cit.

[44].              Australian Forest Products Association (AUSFPA), Forest products industry supports tougher anti-dumping measures, media release, 16 December 2014, accessed 16 March 2015.

[45].              Australian Industry Group (Ai Group), Strengthening of Australia’s anti-dumping system, media release, 15 December 2014, accessed 16 March 2015.

[46].              Australian Manufacturing Workers Union (AMWU), Stronger anti-dumping regulation needed: Australian paper sent to the wall, media release, 27 February 2015, accessed 16 March 2015.

[47].              Ibid.

[48].              AUSVEG, Reforms to lift growers out of the dumps, media release, 16 December 2014, accessed 10 March 2015.

[49].              PACIA, Australian chemistry industry welcomes improved access to anti-dumping remedies, media release, 15 December 2014, accessed 10 March 2015.

[50].              SPC, SPC congratulates the Government on reforms to Australia’s anti-dumping system, media release, 16 December 2014, accessed 10 March 2015.

[51].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, p. 5; Explanatory Memorandum, Customs Tariff (Anti-Dumping) Amendment Bill 2015, p. 1, accessed 10 March 2015.

[52].              The Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory Memorandum to the Customs Amendment Bill, and page 4 of the Explanatory Memorandum to the Customs Tariff Amendment Bill.

[53].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, pp. 7–8.

[54].              Ibid., p. 8.

[55].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 7.             

[56].              Agreement on subsidies and countervailing measures, contained in Annex 1A of the Marrakesh Agreement establishing the World Trade Organisation, opened for signature 15 April 1994, ATS [1995] No. 8 (entered into force 1 January 1995), clause 12.1.1.

[57].              I Macfarlane (Minister for Industry) and B Baldwin (Parliamentary Secretary to the Minister for Industry), Levelling the playing field for Australian manufacturers and producers, op. cit., p. 4.

[58].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., pp. 13–18.

[59].              ADC, Dumping and Subsidy Manual, ADC, December 2013, p. 11, accessed 16 March 2015.

[60].              Customs Act 1901, accessed 10 March 2015.

[61].              See also the ADC’s Dumping and Subsidy Manual, op. cit., p. 133. Foreign governments subsidise industries when they provide financial assistance to benefit the production, manufacture, or exportation of goods. Subsidies can take many forms, such as direct cash payments, credits against taxes, and loans at terms that do not reflect market conditions. (ADC, ‘What is a subsidy’, ADC website, accessed 18 March 2015).

[62].              Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the Anti-Dumping Agreement’), contained in Annex 1A of the Marrakesh Agreement establishing the World Trade Organisation, opened for signature 15 April 1994, ATS [1995] No. 8 (entered into force 1 January 1995), clause 5.8.              

[63].              Proposed subsection 269TDA(14B) of the Customs Act.

[64].              These conditions match those that the Minister may consider under subsection 269TAE(2C) of the Customs Act.

[65].              Proposed subsection 269TDA(14B)(f) of the Customs Act.

[66].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 21.

[67].              The subsection adopts the required elements from Article 3.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti- Dumping Agreement or ADA). By the terms of Article 3.3, it is ‘only if’ the above conditions are established that an investigating authority may make a cumulative assessment of the effects of dumped imports from several countries.

[68].              Ibid., p. 22.

[69].              ADC, Dumping and subsidy manual, op. cit., p. 115.

[70].              Ibid., p. 115.

[71].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 23. 

[72].              ADC, Dumping and Subsidy Manual, op. cit., p. 158.

[73].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 25.

[74].              ADC, Dumping and Subsidy Manual, op. cit., p. 158. The amendment in item 74 specifies that a new exporter will not have exported during the period of the investigation.

[75].              ADC, Dumping and subsidy manual, op. cit., p. 147.

[76].              Subsection 269TEB(6) of the Customs Act. However if multiple exporters are the subject of the same investigation, where an undertaking is accepted from one exporter, the investigation may continue in relation to other exporters, and result in a notice.

[77].              Subsection 269TEB(7) of the Customs Act.

[78].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 26; Agreement on subsidies and countervailing measures, op. cit., clause 21.3; Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994, op. cit., clause 11.3.

[79].              The proposed amendment also refers to the ‘original notice’: this is the notice made in relation to other exporters as part of an investigation, but does not apply to exporters from whom an undertaking is accepted.

[80].              Paragraphs 269TG(1)(b) and 269TJ(1)(b) of the Customs Act.

[81].              Customs Act, subsection 269T(2AD).

[82].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., p. 28. 

[83].              Ibid., p. 28.              

[84].              The lesser duty rule refers to the use or imposition of an amount of ‘dumping or countervailing duty (based on the non-injurious price) less than the full dumping or subsidy margin, where the lesser amount is considered sufficient to remove the material injury caused by the dumping or subsidisation’ (Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, p. 72).

[85].              Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015, op. cit., pp. 29–30.

[86].              Agreement on subsidies and countervailing measures, op. cit. 

[87].              Explanatory Memorandum, op. cit., p. 31. 

[88].              I Macfarlane, ‘Second reading speech: Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015’, House of Representatives, Debates, 26 February 2015, pp. 2–3, accessed 16 March 2015.

[89].              The Anti-Dumping Commissioner ‘is required to terminate investigations in respect of individual exporters, exporters generally, or bv country, where certain conditions are evident’ – generally speaking, where the margins or injury caused are negligible (ADC, Anti-Dumping and Subsidy Manual, op. cit., p. 133).

[90].              ADC, ‘International Trade Remedies Forum’, ADC website, accessed 10 March 2015.

[91].              Ibid. 

[92].              Customs Act 1901, section 269ZZYG; ADC, ‘ITRF working group reports’, op. cit.

[93].              I Macfarlane, ‘Second reading speech: Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015’, op. cit. 

[94].              I Macfarlane (Minister for Industry) and B Baldwin (Parliamentary Secretary to the Minister for Industry), Levelling the playing field for Australian manufacturers and producers, op. cit., p. 5.

[95].              Customs Tariff (Anti-Dumping) Act 1975, accessed 17 March 2015.