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CUSTOMS AMENDMENT (ANTI-DUMPING MEASURES) BILL 2013E CUSTOMS TARIFF (ANTI-DUMPING) AMENDMENT BILL 2013

Order of the day read for the adjourned debate on the motion of the Minister for Sport (Senator Lundy)—That these bills be now read a second time.

Debate resumed.

Limitation of debate: The time allotted for the consideration of these bills expired.

The following amendment in respect of the Customs Amendment (Anti-dumping Measures) Bill 2013 circulated by the Democratic Labor Party and Senator Xenophon was considered:

 At the end of the motion "That these bills be now read a second time", add "but the Senate:

  (a) calls on the Government to commission an independent review of:

   (i)  the definition of a `particular market situation' under section 269TAC(2)(ii) of the Customs Act 1901 in order to better define the circumstances under which the situation in the market of the country of export is such that the market is not suitable for use in determining a `normal value' under  subsection 269TAC(1), and the related operation of sub-regulation 1802(b)(ii) of the Customs Regulations 1926,

   (ii) the application process and the current approved form for Application for Dumping and/or countervailing Duties (Form B108) under the Customs Act 1901, with specific reference to:

    (A) the current approach by the European Union,

    (B) the impact on small manufacturers, and

    (C) the burden of proof and establishing `material harm', and


   (iii) a possible amendment to subsection 269TAB(1)(b) of the Customs Act 1901 to allow a further circumstance in which an export price may be determined by deductive means, where sales by an importer into the Australian market are on unprofitable terms;

  (b) calls on the Government to refer these matters to the International Trade Remedies Forum to determine terms of reference for an independent review within 12 months of the commencement of the provisions in the Customs Amendment (Anti-dumping Measures) Bill 2013; and

  (c) is of the view that:

   (i) such a review must have regard to matters including:

    (A) breaches of International Labour Organisation rules and/or conditions (such as those relating to underage labour), and

    (B) environmental issues (such as deforestation), and

   (ii) the report should be delivered to the Minister within 6 months of the commencement of the review, to be tabled in both houses by the Minister within 5 sitting days of receipt".

Question—That the amendment be agreed to—put.

The Senate divided—

AYES, 11

Senators—

Di Natale

Hanson-Young

Ludlam

Madigan

Milne

Rhiannon

Siewert

Waters

Whish-Wilson

Wright

Xenophon (Teller)

NOES, 35

Senators—

Back (Teller)

Bilyk

Birmingham

Brown

Bushby

Cameron

Colbeck

Cormann

Crossin

Faulkner

Fawcett

Feeney

Fierravanti-Wells

Fifield

Furner

Gallacher

Kroger

Lines

Ludwig

Lundy

McEwen

McKenzie

McLucas

Moore

Parry

Polley

Ruston

Singh

Sinodinos

Smith

Stephens

Sterle

Thorp

Urquhart

Williams

Question negatived.

Question—That these bills be now read a second time—put and passed.

Bills read a second time.


The following amendments in respect of the Customs Amendment (Anti-dumping Measures) Bill 2013 circulated by the Australian Greens were considered:

 Schedule 1, page 4(after line 14), after item 6, insert:

 6A Subsection 269TAC(2A)

  After subsection (2), add:

  (2A) Where the Minister is satisfied that because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1), regardless of subsection (5D), the normal value of goods is the amount determined by the Minister having regard to all relevant information, including by reference to costs of production calculated on the basis of records kept by the exporter or producer, provided that:

 (a) such records are in accordance with generally accepted accounting principles of the exporting country;

 (b) such records reasonably reflect the costs associated with the production and sale of the like goods under consideration; and

 (c) the costs incurred are not affected by the particular market situation.

 Schedule 1, page 4 (after line 14), after item 6, insert:

 6B At the end of Division 1 of Part XVB

  Add:

 

269TBAA Access to import data

  (1) For the purposes of subsection 16(2) of the Customs Administration Act 1985, a person is authorised to make a record of, and to disclose to any person, protected information (within the meaning of that section) that is import data.

  (2) Despite section 12 of the Census and Statistics Act 1905 and any determination made under section 13 of that Act, the Statistician (within the meaning of that Act) must publish all import data.

  (3) For the purposes of this section, import data means the following information about individual shipments of goods exported to Australia:

 (a) country of origin;

 (b) the type of goods;

 (c) the volume of the shipment;

 (d) the value of the shipment;

 (e) any other details about the shipment of the goods specified by the Minister by legislative instrument.

Question—That the amendments be agreed to—put.

The Senate divided—

AYES,11


Senators—
Di NataleMadiganSiewert (Teller)Wright
Hanson-YoungMilneWatersXenophon
LudlamRhiannonWhish-Wilson

NOES, 36



Senators—
Back (Teller)CrossinLinesRuston
BilykFaulknerLudwigSingh
BirminghamFawcettLundySinodinos
BrownFeeneyMcEwenSmith
BushbyFierravanti-WellsMcKenzieStephens
CameronFifieldMcLucasSterle
ColbeckFurnerMooreThorp
CollinsGallacherParryUrquhart
CormannKrogerPolleyWilliams

Question negatived.

The following amendment in respect of the Customs Amendment (Anti-dumping Measures) Bill 2013 circulated by the Democratic Labor Party and Senator Xenophon was considered:

 Schedule 1, page 4 (after line 14), after item 6, insert:

 6A At the end of Division 1 of Part XVB

  Add:

 

269TBAB Reporting information about imports into Australia

  (1) The Commissioner must:

 (a) establish a publicly available free website; and

 (b) publish on the website, and keep updated, such information as prescribed by the regulation made for the purpose of this subsection.

  (2) The regulation made for the purpose of paragraph (1)(a) must:

 (a) include details of the kind of information that the Commissioner must publish, and keep updated, on the website; and

 (b) include a requirement that the following information about individual shipments of goods exported to Australia be published on the website:

 (i) the country of origin of the shipment;

 (ii) the type of goods in the shipment;

 (iii) the volume of the shipment;

 (iv) the value of the shipment.

  (3) Before recommending that the Governor-General make a regulation for the purpose of this section, the Minister must consult with the Commissioner about the kind of information that should be published on the website.

Question—That the amendment be agreed to—put.


The Senate divided—

AYES,11


Senators—
Di NataleMadiganSiewertWright
Hanson-YoungMilneWatersXenophon (Teller)
LudlamRhiannonWhish-Wilson

NOES, 37


Senators—
Back (Teller)EdwardsLudwigSinodinos
BilykFaulknerLundySmith
BirminghamFawcettMcEwenStephens
BrownFeeneyMcKenzieSterle
BushbyFierravanti-WellsMcLucasThorp
CameronFifieldMooreUrquhart
ColbeckFurnerParryWilliams
CollinsGallacherPolley
CormannKrogerRuston
CrossinLinesSingh

Question negatived.

The following amendments in respect of the Customs Amendment (Anti-dumping Measures) Bill 2013 circulated by the Democratic Labor Party and Senator Xenophon were considered:

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 1 After paragraph 269TAB(1)(a)

  Insert:

 (ab) in circumstances where the sale by the importer of the goods into the Australian market is on less than profitable terms.

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 2 At the end of Division 1 of Part XVB

  Add:

 

269TBAB Reporting information about imports into Australia

  (1) The Commissioner must:

 (a) establish a publicly available free website; and

 (b) publish on the website, and keep updated, such information as prescribed by the regulation made for the purpose of this subsection.

  (2) The regulation made for the purpose of paragraph (1)(a) must:

 (a) include details of the kind of information that the Commissioner must publish, and keep updated, on the website; and

 (b) include a requirement that the following information about individual shipments of goods exported to Australia be published on the website:

 (i) the country of origin of the shipment;

 (ii) the type of goods in the shipment;

 (iii) the volume of the shipment;

 (iv) the value of the shipment.


 (3) Before recommending that the Governor-General make a regulation for the purpose of this section, the Minister must consult with the Commissioner about the kind of information that should be published on the website.

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 3 At the end of Part XVC

  Add:

 

269ZZYH Review of operation of Part XVB

  (1) The Minister:

 (a) must cause the Forum to undertake a review (the first review) of the first 2 years of the operation of Part XVB as amended by the Customs Amendment (Anti-dumping Improvements) Act (No. 2) 2011; and

 (b) may cause the Forum to undertake a review (a subsequent review) of the operation of Part XVB during other specified periods.

  (2) The Forum must give the Minister a written report of a review under this section:

 (a) in the case of the first review—within 6 months after the end of the 2 year period; and

 (b) in the case of a subsequent review—within 6 months after the end of the specified period to which the review relates.

  (3) A review under this section must include an opportunity for interested parties and members of the public to make written submissions on the operation of Part XVB.

  (4) Officers of Customs must, if requested to do so by the Forum, assist the Forum in:

 (a) conducting a review; and

 (b) preparing the written report of a review.

  (5) The Minister must cause a copy of a report of a review under this section to be tabled in each House of the Parliament within 15 sitting days of that House after he or she receives the report.

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 4 After section 269TDAA

  Insert:

 

269TDAAB Onus of proof if application not rejected

  (1) If the CEO decides not to reject an application under subsection 269TB(1), the importer of the imported goods the subject of the application bears the onus of proving that the imported goods have not been:

 (a) dumped into Australia; or

 (b) subsidised for export into Australia.

  (2) Any material lack of cooperation for the purposes of subsection (1) by the importer of the imported goods the subject of the application must give rise to the rebuttable presumption of dumping and/or subsidised export into Australia by the importer.


 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 5 After section 269TDAA

  Insert:

 

269TDAAB Onus of proof if preliminary affirmative determination made

  (1) If the CEO makes a preliminary affirmative determination in respect of an application under subsection 269TD(1), the importer of the imported goods that is the subject of the application bears the onus of proving that the imported goods have not been:

 (a) dumped into Australia; or

 (b) subsidised for export into Australia.

  (2) Any material lack of cooperation for the purposes of subsection (1) by the importer of the imported goods the subject of the application must give rise to the rebuttable presumption of dumping and/or subsidised export into Australia by the importer.

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

 6 Subsection 269T(1)

  Insert:

   International Trade Remedies Forum means the Forum established under Part XVC.

 7 After subsection 269TC(4)

  Insert:

  (4A) If the CEO decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the CEO:

 (a) must have regard to any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (b) must consult the International Trade Remedies Forum and other persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations;

   for the purposes of considering the application and making a recommendation to the Minister.

 8 Subsection 269TD(1)

  Omit "60 days after".

 9 At the end of paragraph 269TD(2)(a)

  Add:

 (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and


 10 At the end of paragraph 269TDAA(2)(a)

  Add:

 (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

 11 After subsection 269TE(2)

  Insert:

  (2A) Subsection (2) does not preclude consideration by the CEO of:

 (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b).

 12 At the end of paragraph 269TEA(3)(a)

  Add:

 (v) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (vi) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

 13 After subsection 269TEB(4)

  Insert:

  (4A) If the CEO is considering the terms of an undertaking under subsection (2) or the revised terms of an undertaking under subsection (4), the CEO must have regard to:

 (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b);

   for the purpose of that consideration.

 14 Before subsection 269ZC(1)

  Insert:

  (1A) If an application for review of anti-dumping measures is lodged with Customs in accordance with section 269ZB, the CEO must, within 20 days after Customs receives the application, consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries.


 15 Paragraph 269ZC(1)(b)

  Repeal the paragraph, substitute:

 (b) if the CEO is not satisfied in relation to the application, having regard to:

 (i) the application; and

 (ii) any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (iii) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

 (iv) any other information that the CEO considers relevant;

  of one or more of the matters referred to in subsection (2);

 16 At the end of paragraph 269ZD(2)(a)

  Add:

 (iv) any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

 (v) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian as a consequence of consultations under subsection 269ZC(1A); and

 17 Paragraph 269ZHD(1)(b)

  Repeal the paragraph, substitute:

 (b) if the CEO is not satisfied in relation to any of the applications, having regard to:

 (i) the application; and

 (ii) any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (iii) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

 (iv) any other information that the CEO considers relevant;

  of one or more of the matters referred to in subsection (2);

 18 Before subsection 269ZHD(2)

  Insert:

  (1A) If an application for continuation of anti-dumping measures is lodged with Customs in accordance with section 269ZHC, the CEO must, within the 60 days referred to in paragraph 269ZHB(1)(b), consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries.


 19 At the end of paragraph 269ZHE(2)(a)

  Add:

 (iii) any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

 (iv) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

 20 At the end of paragraph 269ZHF(3)(a)

  Add:

 (v) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (vi) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

 21 After subsection 269ZZ(1)

  Insert:

  (1A) Subsection (1) does not preclude consideration by the Review Panel of:

 (a) any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

 (b) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA or 269ZZQB.

 22 After subsection 269ZZE(2)

  Insert:

  (2A) An applicant may, in an application for a review, provide new or updated information to the Review Panel that reasonably could not have been provided earlier.

 23 After section 269ZZE

  Insert:

 

269ZZEA Consultation with International Trade Remedies Forum etc.

   In conducting a review under this Subdivision, the Review Panel must consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations.


 24 Subsection 269ZZG(2)

  Omit "information", substitute ", including new or updated information that reasonably could not have been provided earlier,".

 25 Subsection 269ZZK(6) (at the end of the definition of relevant information)

  Add:

 ; and (iii) that is new or updated information provided by an interested party that reasonably could not have been provided earlier; and

 (e) any new or updated information for the purposes of the information to which paragraphs (a) to (d) relates that reasonably could not have been provided earlier; and

 (f) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA.

 26 After paragraph 269ZZL(1)(a)

  Insert:

 (ab) in reinvestigating a finding or findings, have regard to any new or updated information that subsequently is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

 27 After subsection 269ZZQ(1A)

  Insert:

  (1B) An applicant may, in an application for a review, provide new or updated information to the Review Panel that reasonably could not have been provided earlier.

 28 After section 269ZZQA

  Insert:

 

269ZZQB Consultation with International Trade Remedies Forum etc.

   In conducting a review under this Subdivision, the Review Panel must consult the International Trade Remedies Forum and persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by that Forum or those persons as a consequence of those consultations.

 29 Subsection 269ZZS(3)

  Repeal the subsection, substitute:

  (3) In making a decision under this section, the Review Panel may have regard to:

 (a) information that was before the CEO when the CEO made the reviewable decision; and

 (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and


 (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

 30 Subsection 269ZZT(4)

  Repeal the subsection, substitute:

  (4) In making a decision under this section, the Review Panel may have regard to:

 (a) information that was before the CEO when the CEO made the reviewable decision; and

 (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

 (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

 31 Subsection 269ZZU(3)

  Repeal the subsection, substitute:

  (3) In making a decision under this section, the Review Panel may have regard to:

 (a) information of the kinds referred to in subsection 269X(5) that was before the CEO when the CEO made the reviewable decision; and

 (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

 (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.

 32 Subsection 269ZZUA(5)

  Repeal the subsection, substitute:

  (5) In making a decision under this section, the Review Panel may have regard to:

 (a) information that was before the CEO when the CEO made the rejection decision; and

 (b) any new or updated information that subsequently is provided to the Review Panel by an interested party that reasonably could not have been provided earlier; and

 (c) any information and analysis provided by the International Trade Remedies Forum or persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQB.


 33 At the end of section 269ZZYC:

  Add:

 ; (c) to advise and provide information to the CEO in respect of applications under Part XVB or the terms of any undertakings to be made under that Part;

 (d) to advise and provide information to the Review Panel in respect of reviews undertaken by the Review Panel under Part XVB;

 (e) to undertake reviews under section 269ZZYH.

 Schedule 1, page 13 (after line 19), at the end of the bill, add:

  

Schedule 2—Further amendments

 

Customs Act 1901

Question—That the amendments be agreed to—put.

The Senate divided—

AYES,11


Senators—
Di NataleMadiganSiewertWright
Hanson-YoungMilneWatersXenophon (Teller)
LudlamRhiannonWhish-Wilson

NOES, 36


Senators—
Back (Teller)EdwardsLinesRuston
BilykFaulknerLudwigSingh
BirminghamFawcettLundySinodinos
BushbyFeeneyMcEwenSmith
CameronFierravanti-WellsMcKenzieStephens
ColbeckFifieldMcLucasSterle
CollinsFurnerMooreThorp
CormannGallacherParryUrquhart
CrossinKrogerPolleyWilliams

Question negatived.

Question—That the remaining stages of these bills be agreed to and these bills be now passed—put and passed.

Bills read a third time.