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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011

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7256

REVISED 2

2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Customs Amendment (Anti-dumping Improvements) Bill (No.  2) 2011

 

 

(1)     Schedule  1 , page 3 (after line 11) , after item  1 , insert:

1A  Subsection 269T(1)

Insert:

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

[enhanced consultation]

(2)     Schedule  1 , page 3 (after line 17) , after item  3 , insert:

3A  At the end of section 269TACB

Add:

           (11)  If the Minister determines under this section that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of section 269TAE.

3B  Subsection 269TAE(2A)

Repeal the subsection, substitute:

          (2A)  If the Minister determines under section 269TACB or 269TAG that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of this section.

3C  At the end of section 269TAG

Add:

             (7)  If the Minister determines under this section that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of section 269TAE.

3D  After subsection 269TB(1)

Insert:

          (1A)  An application under subsection (1) must:

                     (a)  be in the form prescribed by the regulations and contain the information required by the form; and

                     (b)  require supporting data relating to no more than the last 90 days; and

                     (c)  indicate whether public notice of a preliminary proposal for the application has been given under section 269TBB; and

                     (d)  be accompanied by any other information or documents prescribed by the regulations.

3E  At the end of section 269TB

Add:

             (7)  For the purposes of subsection (6), if:

                     (a)  public notice of a preliminary proposal for the application has been given under section 269TBB; and

                     (b)  one or more persons who produce or manufacture like goods in Australia have lodged supporting statements with the CEO in response to that notice;

each of those persons is taken to be a person who supports the application.

3F  After section 269TB

Insert:

269TBB  Preliminary proposal for an application

             (1)  Before a person makes an application under subsection 269TB(1) in relation to a consignment of goods, the person may request that the CEO give public notice of a preliminary proposal for the application.

             (2)  As soon as practicable after receiving a request under subsection (1), the CEO must:

                     (a)  give public notice of the preliminary proposal; and

                     (b)  state in the notice that persons who produce or manufacture like goods in Australia may, in writing, lodge a supporting statement with the CEO.

Note:          If those lodging supporting statements, together with the person who made the preliminary proposal, constitute a sufficient part of the Australian industry for the purposes of paragraph 269TB(4)(e), the person will be able to make an application under subsection 269TB(1) based on the preliminary proposal.

             (3)  A request under subsection (1):

                     (a)  must be in writing; and

                     (b)  must include the preliminary proposal; and

                     (c)  may be lodged with Customs in the same way as an application under subsection 269TB(1) may be lodged with Customs.

Note:          Subsection 269TB(5) deals with how an application under subsection 269TB(1) may be lodged with Customs.

             (4)  A preliminary proposal for an application must:

                     (a)  be in the form prescribed by the regulations and contain the information required by the form; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations.

             (5)  A supporting statement must:

                     (a)  be in the form prescribed by the regulations and contain the information required by the form; and

                     (b)  require supporting data relating to no more than the last 90 days; and

                     (c)  be accompanied by any other information or documents prescribed by the regulations.

[material injury; form of applications; small manufacturers]

(3)     Schedule  1 , page 3 (after line 23) , after item  5 , insert:

5A  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.

5B  Subsection 269TD(1)

Omit “60 days after”.

5C  At the end of paragraph 269TD(2)(a)

Add:

                            (iii)  any potential impacts forecast by the CEO in relation to the economic condition of the relevant Australian industry and related Australian industries, including but not limited to employment (including the multiplier effect), capital investment and market operation; 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 paragraph 269TC(4A)(b); and

5D  At the end of paragraph 269TDAA(2)(a)

Add:

                            (iii)  any potential impacts forecast by the CEO in relation to the economic condition of the relevant Australian industry and related Australian industries, including but not limited to employment (including the multiplier effect), capital investment and market operation; 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 paragraph 269TC(4A)(b); and

[form of applications; enhanced consultation]

(4)     Schedule  1 , page 3 (before line 24) , before item  6 , insert:

5E  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.

[onus of proof]

(5)     Schedule  1 , page 3 (after line 25) , after item  6 , insert:

6A  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).

[enhanced consultation]

(6)     Schedule  1 , page 3 (after line 30) , after item  7 , insert:

7A  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

7B  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.

7C  Paragraphs 269TG(3A)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  in accordance with subsection 269ZI(9) the Minister is not required to include in the notice a statement of that value or price; and

                     (b)  that value or price must not be published in any other way.

7D  Paragraphs 269TH(4)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  in accordance with subsection 269ZI(9), the Minister is not required to include in the notice a statement of that value or price; and

                     (b)  that value or price must not be published in any other way.

7E  Paragraphs 269TJ(12)(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  in accordance with subsection 269ZI(9), the Minister is not required to include a statement of that amount or that price in the notice; and

                     (d)  that amount or that price must not be published in any other way.

7F  Paragraphs 269TK(6)(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  in accordance with subsection 269ZI(9), the Minister is not required to include a statement of that amount or that price in the notice; but

                     (d)  that amount or that price must not be published in any other way.

[enhanced consultation; publication restrictions]

(7)     Schedule  1 , page 4 (after line 5) , after item  8 , insert:

8A  Paragraph 269X(3)(a)

Repeal the paragraph, substitute:

                     (a)  give the applicant:

                              (i)  if subparagraph (ii) does not apply—a copy of the information that he or she proposes to take into account; or

                             (ii)  if the person supplying the information has claimed that the information is confidential or that the provision of that information to any other person would adversely affect the business or commercial interests of the person supplying the information—a summary of that information in a form that allows a reasonable understanding of the information without breaching that confidentiality or adversely affecting those interests; and

[providing information to applicant]

(8)     Schedule  1 , page 4 (after line 13) , after item  12 , insert:

12A  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.

12B  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);

[enhanced consultation]

(9)     Schedule  1 , page 4 (after line 21) , after item  14 , insert:

14A  At the end of paragraph 269ZD(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 as a consequence of consultations under subsection 269ZC(1A); and

[enhanced consultation]

(10)   Schedule  1 , page 4 (after line 27) , after item 15 , insert:

15A  After subsection 269ZHC(1)

Insert:

          (1A)  An application under subsection (1) must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations.

15B  Before subsection 269ZHD(1)

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.

15C  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);

[form of applications; enhanced consultation]

(11)   Schedule  1 , page 5 (after line 4) , after item  17 , insert:

17A  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

[enhanced consultation]

(12)   Schedule  1 , page 5 (after line 10) , after item  18 , insert:

18A  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

[enhanced consultation]

(13)   Schedule  1 , page 12 (after line 9) , after item  34 , insert:

34A  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.

[enhanced consultation]

(14)   Schedule  1 , page 14 (after line 23) , after item  45 , insert:

45A  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.

[enhanced consultation]

 (15)  Schedule  1 , page 14 (after line 25) , after item  46 , insert:

46A  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.

[enhanced consultation]

(16)   Schedule  1 , item  47 , page 14 (before line 28) , before section 269ZZG, insert:

269ZZFA   Review Panel ministerial decision affirmative determination

             (1)  If:

                     (a)  an applicant makes an application for a review of a reviewable decision provided for in paragraph 269ZZA(1)(b); and

                     (b)  the application contains a statement mentioned in paragraph 269ZZE(2)(b); and

                     (c)  the Review Panel is satisfied that the statement sets out reasonable grounds for the reviewable decision not being the correct or preferable decision;

the Review Panel may make a determination (a Review Panel ministerial decision affirmative determination ) to that effect.

             (2)  If the Review Panel makes a Review Panel ministerial decision affirmative determination:

                     (a)  the Review Panel must give public notice of that determination; and

                     (b)  Customs may, at the time of making that determination or at any later time during the review, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while:

                              (i)  the review continues under this Subdivision; and

                             (ii)  if, under section 269ZZL, the Review Panel requires the CEO to reinvestigate a specific finding or findings—the reinvestigation continues under Division 2 until the Minister makes a decision under subsection 269ZZM(1).

[collection of securities]

(17)   Schedule 1, item 47, page 15 (line 18), after “information”, insert “, including new or updated information that reasonably could not have been provided earlier,”.

[enhanced consultation]

(18)   Schedule  1 , item  65 , page 17 (line 29) to page 18 (line 12) , omit the item, substitute:

65  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

                     (c)  if the reviewable decision was made because of an application under subsection 269ZA(1)—the information the CEO had regard to, or was, under paragraph 269ZDA(3)(a), required to have regard to, when making the findings set out in the report under section 269ZDA to the Minister in relation to the making of the reviewable decision; and

                     (d)  if the reviewable decision was made because of an application under section 269ZHB—the information the CEO had regard to, or was, under paragraph 269ZHF(3)(a), required to have regard to, when making the findings set out in the report under section 269ZHF to the Minister in relation to the making of the reviewable decision; 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.

            [enhanced consultation]

(19)   Schedule  1 , item  66 , page 18 (after line 22) , 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

[enhanced consultation]

(20)   Schedule  1 , item  76 , page 21 (after line 4) , 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.

[enhanced consultation]

(21)   Schedule  1 , item  78 , page 21 (after line 30) , 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.

[enhanced consultation]

(22)   Schedule  1 , item  81 , page 22 (lines 7 and 8) , omit the item, substitute:

81  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.

[enhanced consultation]

(23)   Schedule  1 , item  84 , page 22 (line 13) , omit “ , (2) and (4) ”, substitute “ and (2) ”.

[enhanced consultation]

(24)   Schedule  1 , page 22 (after line 14) , after item  84 , insert:

84A  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.

[enhanced consultation]

(25)   Schedule  1 , item  89 , page 22 (line 27) , omit “ Subsections 269ZZU(2) and (3) ”, substitute “ Subsection 269ZZU(2) ”.

[enhanced consultation]

(26)   Schedule  1 , page 22 (after line 29) , after item  89 , insert:

89A  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.

[enhanced consultation]

(27)   Schedule  1 , item  92 , page 23 (line 9) , omit “ , (4) and (5) ”, substitute “ and (4) ”.

[enhanced consultation]

(28)   Schedule  1 , page 23 (after line 10) , after item  92 , insert:

92A  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.

[enhanced consultation]

(29)   Schedule  1 , page 23 (after line 12) , after item  93 , insert:

93A  After section 269ZZUA

Insert:

269ZZUB   Review Panel CEO decision affirmative determination

             (1)  If:

                     (a)  an applicant makes an application for a review of a negative prima facie decision or a termination decision; and

                     (b)  the Review Panel is considering the application under section 269ZZS or 269ZZT, as the case requires;

the Review Panel may make a determination (a Review Panel CEO decision affirmative determination ) to that effect.

             (2)  If the Review Panel makes a Review Panel CEO decision affirmative determination:

                     (a)  the Review Panel must give public notice of that determination; and

                     (b)  Customs may, at the time of making that determination or at any later time during the review, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while:

                              (i)  the review continues under this Subdivision; and

                             (ii)  if the Review Panel makes a decision under paragraph 269ZZS(1)(b) or 269ZZT(1)(b), as the case may be—the investigation continues under Division 2 until the Minister makes a decision under Division 3.

[collection of securities]

(30)   Schedule 1 , item 104 , page 25 (line 6) , 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.

[enhanced consultation]

(31)   Schedule 1 , item 104 , page 26 (after line 23) , 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.

[review of Part XVB]