Bills Digest no. 28 2011–12
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This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Law and Bills Digest Section
17 August 2011
House: House of Representatives
Portfolio: Home Affairs
Commencement: Schedule 1: single day to be fixed by proclamation, however if any of the provisions do not commence within 6 months of Royal Assent, then they commence on the day after that period. Sections 1-3 and anything else not covered: on Royal Assent.
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/bills/. 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/.
The Bill amends Division 5 Part XVB of the Customs Act 1901 (the Customs Act) to:
- clarify how parties are to apply for a review of anti-dumping measures
- establish a process which must be followed in order for the Chief Executive Officer of Customs (CEO) to be able to recommend, and for the Minister to declare, that anti-dumping measures should be revoked at the conclusion of a review, and
- introduce a test outlining the circumstances in which the CEO may recommend that the Minister revoke anti-dumping measures.
The proposed amendments are designed to overcome what was considered to be a problematic decision by the Full Federal Court in the case Minister of State for Home Affairs v Siam Polyethylene  FCAFC 86 (‘the Siam case’). The Court considered the test that the Minister must apply in deciding whether anti-dumping measures should be revoked. The Court interpreted the current operation of the law as requiring anti-dumping measures to be removed as soon as there is no dumping of those products, or no continuing material injury to the relevant Australian industry caused by dumping. The Minister for Home Affairs, the Hon Brendan O’Connor MP responded to the decision in the Siam case by stating that:
[...] the court’s interpretation of the test would lead to anti-dumping measures being revoked where Australian industry remains at risk of being damaged by dumping.
That’s not consistent with world practice or in the interest of the Australian economy and that’s why we’re taking action to rectify the situation.
Furthermore the Court’s decision
[...] highlighted a lack of clarity in the current review process...
The amendments in this Bill are not related to the Government’s consideration of the Productivity Commission’s May 2010 report titled Australia’s Anti-Dumping and Countervailing System. The Government’s response to this report is being developed as part of the 2011-2012 budgetary process.
‘Dumping’ is a term used in international trade law to refer to a situation where a company in one country exports a product to another country, at a price which is either below the price it normally charges in its home market, or is below its costs of production.
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, workers and consumers. An assessment of the merits of these views is beyond the scope of this digest. However, the main perspectives on this issue in relation to this Bill are briefly outlined under the heading of ‘Policy position of non‑government parties/independents’.
The principal Australian laws dealing with anti-dumping measures are contained in the Customs Act, which sets out the general inquiry process, and the Customs Tariff (Anti-Dumping) Act 1975 which provides for the imposition of anti-dumping and countervailing duties.
The evolution of Australia’s anti-dumping law has, in the main, been the result of Australia’s obligations as a World Trade Organization (WTO) Member. ‘Australia is obliged, as a signatory to the World Trade Organisation Uruguay Round ‘Anti-Dumping Agreement’ and [the] Agreement on Subsidies and Countervailing Measures 1995, to ensure that its anti-dumping legislation and procedures comply with those Agreements’.
The Anti-Dumping Agreement (formally known as the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade) prescribes rules for the conduct of anti-dumping investigations and the application of measures, including how member countries may: initiate cases, calculate dumping margins, determine injury, enforce remedial measures and review past determinations.
The Countervailing Measures Agreement (formally known as the Agreement on Subsidies and Countervailing Measures) regulates measures designed to remedy material injury caused by subsidised imports, along similar lines to the Anti-Dumping Agreement.
Thus, in keeping with the international development of anti-dumping law, and changing domestic policies, Australian legislation has been revised. In its report titled Australia’s Anti-Dumping and Countervailing System the Productivity Commission stated that:
Australia’s anti-dumping system is based on internationally agreed rules and procedures under the auspices of the World Trade Organization (WTO). Nearly all other developed, and many developing, countries have similar anti-dumping regimes. Hence, the objectives and broad concepts underpinning Australia’s system have widespread endorsement.
Under WTO rules, dumping is condemned (though not prohibited) if it causes or threatens material injury to an established competing industry, or if it materially retards the establishment of a domestic industry in a WTO member country. The WTO does not oblige state parties to take action against dumping, however, it is concerned with the measures taken by member states against dumping as it seeks to ensure that these measures comply with its so-called anti-dumping agreement.
GATT 1994 (Article 6) allows countries to take action against dumping. The Anti-Dumping Agreement clarifies and expands Article 6, and the two operate together. They allow countries to act in a way that would normally break the GATT principles of binding a tariff and not discriminating between trading partners — typically anti-dumping action means charging extra import duty on the particular product from the particular exporting country in order to bring its price closer to the “normal value” or to remove the injury to domestic industry in the importing country.
Australia’s anti-dumping and competition framework is situated within the broader industry and competition framework which includes other mechanisms that deal with similar issues.
The legislative provisions relating to anti-dumping are contained in Part XVB of the Customs Act 1901 (the Act). Part XVB sets out, among other things, procedures the Chief Executive Officer of Customs (CEO) must follow, in dealing with an application for the review of anti-dumping measures. It also empowers the CEO to reject or not reject an application for review of anti-dumping measures that applies to a good/product exported to Australia. Provisions prescribing the work of the Review Officer (whose function it is to review, upon application, certain decisions made by the Minister or by the Chief Executive Officer of the Australian Customs Service (the CEO)) are set out in Divisions 8 and 9 of Part XVB of the Act. Customs Regulations 180, 181 and 181A, and the Customs Tariff (Anti-Dumping) Act 1975, are also relevant to this area.
The Australian Customs and Border Protection Service (Customs) has primary responsibility for the administration of Australia’s anti-dumping and countervailing system, including:
- investigations of applications for new anti-dumping and countervailing measures through a multistage process involving the use of complex concepts which require considerable judgement.
- reviews or revocations of existing measures;
- dumping duty assessments, and
- applications for continuation of existing measures.
Both the Australian system and WTO agreements focus exclusively on whether dumping and/or subsidisation has occurred, and whether this has caused or threatens material injury to the local industry producing like goods.
Following investigations, Customs makes recommendations to the responsible Minister (currently the Minister for Home Affairs), and also gives effect to the Minister’s decisions. In addition, Customs provides an advisory service to assist interested parties that are considering applying for anti-dumping and/or countervailing measures (the Dumping Liaison Unit).
Many, though not all, of the decisions emanating from these processes are appellable to the Trade Measures Review Officer (TMRO). The TMRO is a statutory appointment made by the Minister, located within the Attorney-General’s Department, with powers and responsibilities under the Customs Act 1901.
The following information has been taken directly from the following source: Department of Prime Minister and Cabinet, Australia’s Anti-dumping System, chapter 2, http://www.pc.gov.au/__data/assets/pdf_file/0011/93755/05-chapter2.pdf
An industry that believes dumping or subsidisation is causing, or threatening to cause, material injury can apply to Customs for the imposition of measures to redress the situation. Any person may lodge an application, provided that it is made on behalf of an industry producing goods ‘like’ those allegedly being dumped or subsidised.
Applicants are required to provide a range of information and supporting evidence to Customs as part of their application. As well as identifying the imported dumped or subsidised goods and the domestic like goods, the country of export and the relevant Australian industry, applicants must provide:
- estimates of the ‘normal value’ and export price of the dumped goods (to show that dumping has occurred); or an indication of the price-suppressing effect of a subsidy provided by an overseas government
- an estimate of the material injury the industry has suffered (or is likely to suffer)
- some demonstration of causation between the dumping and the injury.
Customs then has 20 days to undertake a preliminary screening to determine whether or not there is sufficient evidence to initiate a formal investigation. As well as assessing the ‘likeness’ of the local and imported goods concerned (see section 2.3), the screening process focuses on: the extent of Australian industry support for the application; and whether the de minimis thresholds that provide for automatic termination of an investigation apply.
These requirements mean that cases are only initiated where a significant proportion of production in the local industry has allegedly experienced (or is threatened with) injury; and, that even where the applicants themselves do not account for the majority of production in the industry, there is (effectively) majority support for the imposition of measures.
In addition, Customs will reject applications or terminate investigations if:
- de minimis
- the volume of dumped or subsidised imports is negligible
- the injury is judged by Customs to be negligible.
Following acceptance of an application for an anti-dumping or countervailing measure, Customs sets a ‘date of initiation’ to notify the public that an investigation is commencing and invites submissions from interested parties.
Once a case has been initiated and an investigation commenced, Customs directly contacts interested parties and invites submissions. These must be lodged with Customs within 40 days of the date of initiation. Following receipt of submissions, Customs investigates and verifies the information.
Where the CEO is satisfied that there is sufficient evidence of dumping and injury to an Australian industry caused by the dumping, Customs may make a Preliminary Affirmative Determination (PAD) from day 60 of the investigation. Customs may then impose provisional measures in the form of securities, but only after a PAD has been made. The securities are temporary additional duties designed to prevent material injury while the investigation continues.
A Statement of Essential Facts (SEF) summarises the relevant facts of the investigation and forms the basis of the final report by Customs to the Minister. Specifically, it addresses whether both:
- the goods in question have been dumped or subsidised, and as a result
- the Australian industry has suffered, or is likely to suffer, material injury.
A statutory time limit of 110 days is specified for the release of the SEF following the initiation of an investigation. The SEF will be used as a basis for recommendations to the Minister. Interested parties have 20 days from the publication of the SEF to submit a response to the SEF.
Customs must complete a final report to the Minister within 155 days of the date of initiation (unless an extension for the preparation of the SEF has been granted) that makes conclusions and recommendations based on its investigation. On the basis of Customs’ recommendations, the Minister decides whether anti-dumping and/or countervailing measures should be imposed.
However, at any time after the release of a PAD (but prior to the Minister’s final decision), an overseas supplier can offer an undertaking to price all future exports at or above the ‘non-injurious’ price. (In countervailing cases, the overseas government can also offer an undertaking to withdraw subsidy support for the exports concerned). Acceptance of an undertaking by the Minister will suspend the investigation in regard to the specific exporter concerned.
The WTO Anti-Dumping Agreement states that the intended purpose of any antidumping measure is to counter the effect of injurious dumping, and that measures should remain in force only as long as is necessary to achieve this (Article 11 of the Anti-Dumping Agreement and Article 21 of the Countervailing Measures Agreement).
Article 11.2 of the Anti-Dumping Agreement sets out the circumstances in which a review of the measures can be requested as well as when a WTO member's anti-dumping authority should self-initiate a review. The Article states that:
Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both.
This particular Article is directly relevant to the amendments proposed by the Bill.
[C]onsistent with the WTO agreements, Australia has legislated that measures will generally remain in force for a period of five years.
Moreover, the system allows measures to be extended for further periods of five years. Specifically, at least nine months before the expiry of any measure, Customs must publish a notice inviting local suppliers to apply for an extension. Those suppliers have 60 days to make this application and to provide the required information. Customs then has 155 days to make inquiries and report to the Minister who, on the basis of this advice may determine that measures should continue for a further five years.
The criteria applied to the continuation of measures are necessarily somewhat different from those applying to the initial investigation, given the ongoing influence of measures in place. In particular, Customs’ review focuses on whether expiration of a measure would be likely to lead to the recurrence of the injury that the measure is intended to prevent — meaning that for an anti-dumping measure, for example, it must form a view on whether injurious dumping is likely to recur if the measure were terminated. When undertaking a continuation review, Customs does not recalculate the dumping or subsidy margin, or re-examine the issue of causation, although the former may be simultaneously considered through a concurrent ‘review of measures’.
A party affected by an anti-dumping measure or undertaking (including an exporter, importer, Australian producer of like goods or a foreign government) may, after it has been in force for 12 months (and annually thereafter), seek a review of the ‘variable factors’ that determine the magnitude of the measure, including: the normal value and ‘ascertained’ export price, or the subsidy level; and, where applicable, the non-injurious price.
Many, though not all, of the decisions made by the Minister (or the CEO of Customs) can be appealed to the TMRO.
The TMRO may review decisions by:
the Minister to impose or not impose a measure
the CEO of Customs to:
– reject an application for dumping or countervailing measures
– terminate an investigation
– recommend to the Minister the refund of an amount of interim duty less than the amount contended.
The TMRO is able to substitute its own decisions for those made by the CEO of Customs. But for decisions made by the Minister, the TMRO can only recommend a reinvestigation by Customs of the matter in dispute.
Decisions not reviewable by the TMRO include:
- a decision by the Minister to accept an undertaking
- a decision by the Minister to vary the amount of the normal value, ascertained export price or non-injurious price underlying a measure from those established by the original investigation (as part of a review of measures)
- a decision by the Minister to continue or not to continue measures
The Siam case
As previously mentioned, WTO rules permit States parties to take action against dumping where that dumping causes material injury to an Australian industry producing ‘like goods’, then the Minister may impose a dumping duty on the imported product to raise its price to the home market level, or a lesser level (if the lesser level would be enough to remove the injury). The imposition of such a duty is known as a ‘measure’. As mentioned above, these measures are subject to review and revocation. As already mentioned, the impetus for this Bill was to respond to the Full Federal Court’s decision in the Siam case dealing with the issue of the test for revocation of measures.
In brief, the facts of the case are:
On 3 December 2003, measures were imposed on imports of linear low density polyethylene from Korea and Thailand to Australia.
On 12 November 2007, Qenos Pty Limited, the sole Australian manufacturer of low density polyethylene, made an application for a review of the anti-dumping measures. On 25 March 2008, Customs published a Statement of Essential Facts inviting interested parties to respond by way of submission by 14 April 2008. On 5 May 2008, Customs reported its findings and recommendations to the Minister in Trade Measures Report No. 134.
On 17 January 2008, Dow Chemical (Australia) Pty Ltd (Dow), an importer, lodged a submission objecting to the measures. Dow and Siam Polyethylene Co Ltd (Siam), an exporter, made a further joint submission in response to the Statement of Essential Facts which was received by Customs on 15 April 2008. One of the issues they raised was the consideration of revocation measures if dumping was not causing material injury. In its findings, Customs had reported in Trade Measures Report No. 134 that the variable factors relevant to the anti-dumping measures (export price, normal value and non-injurious price) had increased. On that basis, a recommendation was made that the Minister declare by public notice that changes be made to the variable factors for the assessment of anti-dumping duties. The Minister signed a public notice giving effect to the recommendations on 23 June 2008.
On the issue of revocation of measures, Customs stated in Trade Measures Report No. 134 that they had:
...considered whether the measures should be revoked. However, its examination of the factors relevant to revocations would have been more extensive if Dow had advised Customs, when notified of the review, of its intention to argue for revocation. Based on the available evidence, Customs is not satisfied that circumstances exist to recommend that measures should be revoked as they relate to SPE [Siam Polyethylene Co Ltd] or to exporters generally.
Siam sought judicial review of the Minister’s decision. The Federal Court set aside Customs' recommendations and the Minister's declaration and public notice in so far as they related to Siam. The Government's appeal to the Full Federal Court on this issue was dismissed.
A key finding by the Court was that Customs had applied the test for revocation of anti-dumping measures incorrectly.
The Full Federal Court held, at paragraph 60 that the current revocation test operates as follows:
In circumstances where revocation is an option under consideration it is considered imperative that the question of revocation can only be addressed by reference to (in this case) s.269TG(2). No provision within Division 5 expressly gives content to how the option of revocation is to be resolved. In the absence of any contrary indication, it is considered inevitable that a recommendation can only be made that an existing dumping measure be revoked "if the anti-dumping measures to which the application relates had not been taken, the Minister would not be entitled to take such measures". And the Minister "would not be entitled to take such measures" if he were not (in this case) "satisfied" as to those matters set forth in s.269TG(2).
Whereas, in its investigation in relation to the dumping of linear low density polyethylene, Customs had interpreted the test for revocation, on the basis that:
...in the hypothetical situation of measures not being in place, there would now be grounds to impose the measures. In other words, if the measures were removed, is it likely that the exporter or exporters would dump goods and cause material injury to the Australian industry....
By this logic, Customs should have revoked the measures if it was of the view that there would not be material injury caused to the relevant industry by dumping, if the measures were removed or not in place.
By the Court’s reasoning, in order to retain the measures, Customs should be satisfied that:
- there is dumping, and
- material injury has been caused, is being caused, or is threatened to be caused, by that dumping.
If these conditions are not present, then the anti-dumping measures should be revoked.
The Government’s position is that the decision in the Siam case is thorny. The Explanatory Memorandum states that:
The finding is problematic because in practice, if measures are already in place and are effective, there may not be current dumping or subsidisation causing material injury.
As a consequence of the Siam decision, it is more likely that a finding of no dumping or no injury during the review period would lead to revocation. This result is anomalous, as the purpose of anti-dumping measures is to remove injurious dumping. Measures will often still be warranted where they have effectively prevented injurious dumping, as an early removal of the measures can lead to a resumption of injurious dumping. As a result, it is necessary to amend the review provisions to clarify the revocation test.
On 24 March 2011 the Senate referred the Customs Amendment (Anti-dumping Measures) Bill 2011 to the Senate Economics Committee for inquiry and report. The Committee reported on 22 June 2011. Details of the inquiry are at: http://www.aph.gov.au/Senate/committee/economics_ctte/customs_amendment_Measures_2011/index.htm
In summary, Committee view is that:
- the new revocation test and related amendments proposed by the Bill will address the issue raised by the Siam decision
- there seems to be no decisive evidence which demonstrates that the amendments proposed by the Bill will affect Australia’s commitment to its WTO obligations
- the new revocation review notice framework will improve the current system, and
- the amendments provide for procedural fairness in the process.
The views on this Bill are covered in chapter 3 of the Senate Committee Report into the provisions of this Bill. See: http://www.aph.gov.au/Senate/committee/economics_ctte/customs_amendment_Measures_2011/report/report.pdf
The Explanatory Memorandum states that there will be no financial impact from this Bill.
The main issues and key provisions of this Bill are covered in chapter 4 of the Senate Committee Report into the main provisions of this Bill. See: http://www.aph.gov.au/Senate/committee/economics_ctte/customs_amendment_Measures_2011/report/report.pdf
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2404.
. Division 5 Part XVB sets out, among other things, procedures the Chief Executive Officer of Customs (CEO) must follow, in dealing with an application for the review of anti-dumping measures. It also empowers the CEO to reject or not reject an application for review of anti-dumping measures that apply to a good/product exported to Australia.
. Ibid, Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 4.
. B O’Connor, media release, op. cit.
. B O'Connor, Minister for Home Affairs, ‘Second reading speech: Customs Amendment (Anti-dumping Measures) Amendment Bill 2011’, House of Representatives, Debates, 2 March 2011, p. 2029.
. The Australian Government asked the Productivity Commission to undertake an inquiry into the effectiveness and impact of Australia's anti-dumping and countervailing system ('the anti-dumping system'). Source: Productivity Commission, Public inquiry into Australia's Anti-dumping and Countervailing System Public, 2011, http://www.pc.gov.au/projects/inquiry/antidumping
. B O’Connor, media release, op. cit.
. The WTO is the successor organisation to the General Agreement on Tariffs and Trade (GATT) which had overseen international trade from its establishment in 1947 until the inauguration of the WTO in 1995. Agreements negotiated under the GATT were incorporated as parts of the Marrakesh Agreement. These agreements are considered to be WTO agreements. The WTO deals with the rules and regulation of trade between member states, providing a framework for negotiating and formalizing trade agreements, along with a dispute resolution process seeking to enforce participants' adherence to WTO agreements which have been signed by representatives of member states and ratified by their parliaments.
. Formally known as the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.
. Productivity Commission, Australia’s Anti-dumping and Countervailing System, Report no. 48, December 2009, p. 1.
. P Van den Bossche, The Law and Policy of the World Trade Organization, Cambridge University Press, Cambridge, 2005, p. 42.
. Article 6 of the GATT (see annex 1, Article VI, 1).
. These regulations deal with the calculation of sales that are not considered to be in the ordinary course of trade at arm’s length.
. De minimis means that something is so small or insignificant in difference that the law is not concerned to take it into account. A dumping margin less than 2 per cent of the export price of the goods concerned is considered to be de minimis. This is consistent with Article 5.8 of the Anti-dumping Agreement.
. This is consistent with Article 11.3 of the Anti-dumping Agreement.
. Section 269T of the Customs Act 1901 defines ‘like goods’ as:
goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics resembling those of the goods under consideration.
. Australian Customs Service, Linear Low Density Polyethylene—The Republic of Indonesia, Republic of Korea and Thailand—Review of Anti-Dumping Measures, Report No. 134: May 2008, p. 15.
. Senate Economics Committee, Report, op cit, p. 11.
. Minister of State for Home Affairs v Siam Polyethylene  FCAFC 86
. Explanatory Memorandum, Customs Amendment (Anti-Dumping Measures) Bill 2011, p. 4.
. Explanatory Memorandum, Customs Amendment (Anti-dumping Measures) Bill 2011, p. 2.
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