Additional Comments by Senator Nick Xenophon
Australia’s anti-dumping and countervailing system has undergone
significant change over the last five years since the measures originally
introduced by the Rudd Government in 2011 that arose, at least in part, from
the Productivity Commission’s 2009 inquiry and my Private Senator’s Bill, the Customs
Amendment (Anti-Dumping) Bill 2011. Subsequent governments have continued
to respond to concerns about the system, and it is generally acknowledged that
the legislative framework is now suitably robust.
I do not resile from my position of supporting a reverse onus of proof
in anti-dumping cases. I note that this was essentially Coalition policy in
The Coalition's Plan to Strengthen Australia's Anti-Dumping
- Transfer anti-dumping responsibilities from Customs to the
Department of Industry;
- Reverse the onus of proof in anti-dumping investigations;
- Commit more funding for anti-dumping investigations;
- Hire an additional 20 specialist anti-dumping
- 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.
While the Government now asserts that a reverse onus of proof would be
against WTO rules, there ought to be a willingness on the part of the
Government to explore the toughest possible measures to ensure dumping does not
occur that does not contravene WTO rules. It seems that other countries,
particularly the US and European Union, have taken a much more active approach
against dumping than successive Australian governments have.
It is vital to note, however, that the application of this legislative
framework is equally important. While the Abbott Government’s transition of the
Anti-Dumping Commission from Customs to Industry is to be congratulated, the
system as a whole is still overly complex, under-resourced, and difficult for
businesses to access. By their very nature, anti-dumping and countervailing
investigations create a labyrinthine mix of domestic and international law that
is almost impossible for anyone who is not an expert to navigate. Indeed,
Anti-Dumping Commissioner Dale Seymour stated in the hearing for this inquiry
that there are only about 1,000 technical experts around the globe and that
most of those live outside Australia.
Given that many of the Australian businesses who most need protection
from dumped products are small to medium manufacturers, it is vitally important
that the system be easy to access and navigate, and that the application and
review processes not be overly onerous. Indeed, one small business was quoted
$1 million to fight an anti-dumping case by a specialist firm of lawyers:
clearly a prohibitive amount.
I note that the Government has expanded on the Trade Remedies Adviser
role that previously existed under the Australian Industries Group to ensure
that SMEs are supported and advised during the application process. While I
strongly support this measure in theory, I believe there is significant scope
to improve it in practice, particularly in terms of resourcing.
Further, I believe there is a far greater role for the Commission itself
in taking a more pre-emptive position in terms of dumping activity. I strongly
encourage the Government to provide greater resources to the Commission so that
it can appropriately monitor and respond to cases in other jurisdictions and be
more active on an international level. The whole onus of bringing and proving
cases should not be on Australian businesses; instead, the Commission must take
on part of this responsibility as an advocate for Australian industry in these
matters and seek to address issues before they reach a critical stage.
In terms of the measures in the bills themselves, it is my strong view
that the International Trade Remedies Forum should be retained. This is a
vitally important mechanism for facilitating communication between industry,
government and other interested parties. It is not enough, in my view, for the
Government to ‘consider’ replacing the ITRF with an administratively
established measure, particularly one with as a few as five members.
Anti-dumping and countervailing measures are an incredibly important part of
what should be a broad suite of measures to support industry, and a
consultative forum mandated through legislation is the only appropriate way to
ensure thorough consultation with industry and other interested parties takes
I also note concerns raised with the committee regarding the operation
of the ITRF since its last meeting in 2013. This is unacceptable, and I refer
the Government to its legislative responsibilities in this regard.
I also share the concerns of submitters regarding the proposed measure
to allow the Review Panel to charge fees for review. While I acknowledge the
need to address frivolous reviews or the use of the process as a stalling
tactic, it is vital to ensure that the establishment of fees does not create an
undue burden or even a disincentive for valid applicants. While I will reserve
my final position until the Government releases the regulations, I do support
the position of the Manufacturers’ Trade Alliance that there are other measures
(including greater scrutiny of applications) that could be equally efficient in
addressing these concerns.
In addition, I support the concerns raised by the CFMEU and the MTA
regarding the proposed change to the definition of ‘subsidies’. In my view,
proving whether or not a benefit has occurred to determine whether a payment
can be considered a subsidy is adding an additional layer of complexity to the
system, and will make it more difficult for duties to be applied. As such, I
oppose this proposed change.
Further, I am concerned that the proposed changes to the notification of
subsidies relating to the measures regarding the lesser duty rule have the
effect of reducing compliance requirements on relevant countries. Under these
proposed changes, for example, a country would only have had to report
subsidies once during the two most recent biennial periods in which
subsidy notifications were due. In effect, this means that countries will only
have to report once in a four year period for the lesser duty rule to be
considered, which will provide little or no protection to Australian industry.
I also acknowledge the issues that have been raised in relation to the
proposed changes to the lesser duty rule. In my view it would be preferable for
the rule to be removed completely. Given the WTO requirements, however, the
Government should approach clarifying the application of the rule in such a way
as to provide the greatest support to Australian industry. It is my view that
the proposed changes make the application of the rule slightly better than is
currently the case, but are still behind the best practice of other countries.
While there is general support for most of the measures in these bills,
there are still significant concerns amongst industry and other interested
parties regarding the operation of Australia’s anti-dumping and countervailing
system as a whole. This is particularly relevant in terms of the operation of
the Commission and how it applies the legislative framework to protect
That the bills be amended to remove Parts 7, 11 and 15.
That, subject to Recommendation 1, the bills be passed.
That a root and branch review regarding the overall effectiveness
of the Anti-Dumping Commission and the legislative framework under which it
operates commences within 12 months of the passage of these bills.
Independent Senator for South Australia
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