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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012



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ISSN 1328-8091

Parliament of Australia Departmentof Parliamentary Services

These two Bills will be debated in cognate

Contents

Purpose .................................................................................................................................................... 3

Background .............................................................................................................................................. 4

Definitions ...................................................................................................................................... 4

Anti-dumping ............................................................................................................................ 4

Ad valorem duty ....................................................................................................................... 4

Combination duty ..................................................................................................................... 4

Continuation inquiry ................................................................................................................. 5

Countervailable subsidy ........................................................................................................... 5

Countervailing duty .................................................................................................................. 6

Dumping ................................................................................................................................... 6

Dumping duty ........................................................................................................................... 6

Export price .............................................................................................................................. 6

Fixed duty ................................................................................................................................. 6

Floor price ................................................................................................................................. 6

Lesser duty rule ........................................................................................................................ 7

Like goods ................................................................................................................................. 7

Non-injurious price ................................................................................................................... 7

Normal value ............................................................................................................................ 7

Subsidy ...................................................................................................................................... 7

BILLS DIGEST NO. 145, 2011-12 7 June 2012

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 Les Nielson Economics Section

Variable component of duty ..................................................................................................... 8

Operation of the current system ................................................................................................... 8

Australia’s World Trade Organization (WTO) commitments....................................................... 10

Policy development and recent implementation ........................................................................ 11

Basis of policy commitment .............................................................................................................. 14

Committee consideration ................................................................................................................. 15

Policy position of non-government parties/independents .............................................................. 15

Position of major interest groups ..................................................................................................... 15

Financial implications ............................................................................................................................. 16

Key provisions - Improvements Bill ....................................................................................................... 16

Key provisions - Amendment Bill .......................................................................................................... 19

Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 [and] 3

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 [and] Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012

Date introduced: 21 March 2012

House: House of Representatives

Portfolio: Home Affairs

Commencement: Royal Assent for sections 1 to 3 of the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 (Improvements Bill). Schedule 1 of the Improvements Bill commences on a day to be fixed by Proclamation or the day after the end of a six month period after the date of Royal Assent, whichever is earliest.

Sections 1 to 3 of the Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 (Amendment Bill) will also commence on Royal Assent. Schedule 1 of the Amendment Bill commences at the same time as Schedule 1 of the Improvements Bill (see above).

Links: The links to the Bills, its Explanatory Memorandum and second reading speeches can be found on this Bills’ home pages for the Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012 and Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. 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/.

Purpose

Though these Bills are related, they each have different purposes. The Improvements Bill amends the Customs Act 1901 (Customs Act) to:

 clarify that the Chief Executive Officer of the Customs and Border Protection Service (Customs CEO) and the Minister for Home Affairs (the Minister) have the power to take all facts available (even if they are not the complete set of facts) into account in determining whether a countervailable subsidy1 has been received or the amount of that countervailing subsidy, when certain parties fail to provide information within a reasonable period

 remove the need for a separate review of anti-dumping measures and continuation inquiries2 to be run in close proximity to each other  enable the level of duties of an anti-dumping measure to be recalculated during a continuation inquiry and

1. The meaning of ‘countervailable subsidy’ is explained in the Background of this Bills Digest, under ‘Definitions’. 2. The meaning of ‘continuation inquiry’ is explained in the Background of this Bills Digest, under ‘Definitions’.

4 Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 [and]

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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 remove the current limitation to the inclusion of a profit component when calculating the ‘normal value’ of a good in its country of origin in certain circumstances.3

The Amendment Bill makes changes to the Customs Tariff (Anti-Dumping) Act 1975 (Dumping Duty Act) to allow the Minister to utilise additional forms of interim dumping duty including:

 ad valorem (or percentage) duty  a fixed amount of duty  a combination duty or  floor price.4

Background

Definitions

Trade policy has its own particular language. To assist in understanding the proposed amendments key terms are defined below.

Anti-dumping

Anti‐dumping measures are imposed to prevent an importer from unfairly damaging Australian manufacturing, and commonly include the payment of extra import duties or undertakings.5

Ad valorem duty

A percentage rate of dumping or countervailing duty, for example, X per cent of the export price.6

Combination duty

Dumping duty with both fixed and variable components.7

3. J Clare (Minister for Home Affairs) ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012’, House of Representatives, Debates, 21 March 2012, p. 3688, viewed 24 April 2012, http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/cd08e91c-1ffc-4955-a61a-1a9087358780/0020/hansard_frag.pdf;fileType=application%2Fpdf

4. These terms are explained below, under ‘Definitions’. 5. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, House of Representatives, Canberra, 23 November 2011, p. 30, viewed 18 May 2012, http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4723_ems_49c265d7-e607-4470-980d-

3677f55e9d27/upload_pdf/362620.pdf;fileType=application%2Fpdf 6. Ibid., p. 71.

7. Ibid.

Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 [and] 5

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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Continuation inquiry

A continuation inquiry is an inquiry to determine whether a dumping notice or countervailing duty notice will continue past its statutory five year limit.

Under section 269TM of the Customs Act, dumping and countervailing duty notices that have not been revoked automatically expire five years after the date on which they were published, unless the Minister decides to continue them.

Section 269ZHB of the Customs Act stipulates that not later than nine months before an anti-dumping or countervailing duty notice expires, the Australian Customs and Border Protection Service (Customs) must publicly announce that the relevant measures are due to expire and invite interested parties to apply within 60 days for continuation of the measures. If no application for continuation of the measures is received by Customs within the period allowed in the notice, the measures automatically expire on the specified date.

If an application for continuation of an anti-dumping or countervailing measure is lodged in accordance with the legislative requirements, and the Customs CEO considers that there appear to be reasonable grounds for the application, Customs must initiate a formal inquiry.8 Customs then has up to 155 days to inquire and report to the Minister on whether the measures should be continued. The Minister must make a decision within 30 days from the receipt of the report and publish the required notice.9

Before recommending the continuation of the measures Customs must be satisfied that the expiration of the measures would lead, or would be likely to lead, to a continuation of, or a recurrence of, the dumping or subsidisation and the material injury that the anti-dumping or countervailing measures were intended to prevent.10

Countervailable subsidy

Section 269TAAC of the Customs Act provides that a subsidy11 is a ‘countervailable subsidy’ if it is specific, which includes, broadly:

 a subsidy explicitly limited to a particular enterprise  a subsidy limited to particular enterprises operating in a designated geographical region (say a free trade zone)  a subsidy payable contingent on an enterprise’s export performance or

8. Section 269ZHD of the Customs Act. 9. The 30 day period does not apply if the Minister considers that there are special circumstances that prevent the decision being made in that period - section 269ZHG of the Customs Act. 10. Subsection 269ZHF(2) of the Customs Act. See also Australian Customs Service, Trade Measures Branch, Statement

of essential facts No. 84, Continuation inquiry: certain hot dipped galvanised steel pipes exported from Thailand, 22 November 2004, p. 1, viewed 19 April 2012, http://www.customs.gov.au/webdata/resources/notices/SEF84.pdf 11. Defined below.

6 Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 [and]

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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 a subsidy payable contingent on an enterprise’s use of domestically manufactured goods in preference to imported goods.

Countervailing duty

A countervailing duty is a duty levied where a countervailable subsidy (defined above) has been paid in respect of the imported goods and material injury is, has been, or may be caused to Australian industry. The countervailing duty is designed to offset the effect of the countervailable subsidy.

Dumping

Dumping occurs when an overseas company exports its goods to another country at a price that is below the price it charges in its home market, or below the cost of production.12 For customs purposes, under section 269TACB of the Customs Act the ‘dumping’ of an import into Australia is taken to have occurred where the Minister is satisfied that a good’s export price to Australia is below that good’s normal value.

Dumping duty

It follows that a dumping duty is one imposed on goods dumped in Australia. For customs purposes a dumping duty means duty, other than interim dumping duty, that is payable on goods under section 8 or 9 of the Dumping Duty Act.13

Export price

The price at which goods are exported to Australia.14

Fixed duty

A fixed amount of dumping or countervailing duty, for example $X per kilogram.15

Floor price

The minimum price at which exporters can export goods to Australia before incurring a variable component of dumping duty.16

12. B O’Connor (then Minister for Home Affairs and Justice), Anti-dumping changes provide better protection for Australian industry, media release, 2 March 2011, viewed 19 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F594038%22

13. Section 269T, Customs Act. 14. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., p. 71. 15. Ibid.

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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Lesser duty rule

Applying 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.17

Like goods

Goods that are identical to, or closely resemble, the allegedly dumped or subsidised goods.18

Non-injurious price

The minimum export price necessary to prevent the material injury caused by dumping or subsidisation.19

Normal value

A good’s normal value is the comparable price for like goods sold in the country of export. It can be based on an actual selling price or a constructed price.20

Subsidy

A subsidy is defined at section 269T of the Customs Act in respect of goods that are exported to Australia, as:

 a financial contribution:

- by a government of the country of export or country of origin of those goods

- by a public body of that country or of which that government is a member

- by a private body entrusted or directed by that government or public body to carry out

a governmental function that is made in connection with the production, manufacture or export of those goods and that involves: - a direct transfer of funds from that government or body to the enterprise by whom the

goods are produced, manufactured or exported - a direct transfer of funds from that government or body to that enterprise contingent

upon particular circumstances occurring

16. Ibid., p. 72. 17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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- the acceptance of liabilities, whether actual or potential, of that enterprise by that

government or body - the forgoing, or non-collection, of revenue (other than an allowable exemption or

remission) due to that government or body by that enterprise - the provision by that government or body of goods or services to that enterprise

otherwise than in the course of providing normal infrastructure - the purchase by that government or body of goods provided by that enterprise or

 any form of income or price support as referred to in Article XVI of the General Agreement on Tariffs and Trade 1994 (GATT 199421) that is received from such a government or body.

if that financial contribution or income or price support confers a benefit in relation to those goods.22

Variable component of duty

The amount by which the actual export price of goods exported to Australia is less than the floor price.23

Operation of the current system

Australia’s anti-dumping and countervailing system implements trade remedies (in the form of duties and price undertakings) that World Trade Organization (WTO) members have adopted to form the basis for the maintenance of the multilateral trading system. Its purpose is to protect Australian manufacturers and producers from dumped or subsidised imports that would affect their viability. It provides a small but effective trade remedy — collecting on average $8 million in duties per annum (before refunds), representing an average of 0.004 per cent of the value of goods imported into Australia over the past five years.24

Customs is responsible for the administration of Australia’s anti-dumping system. It undertakes investigations of alleged dumping and subsidisation; inquiries on whether measures should be continued, revoked or varied; and assessments of the final amount of duty to be paid by importers. These activities involve Australian manufacturers, importers, foreign exporters, foreign governments (for subsidy investigations) and, in some cases, end users. Following these investigations and inquiries, it makes recommendations to the Minister and then implements the Minister’s decisions. Customs also provides advice to interested parties involved in potential and actual inquiries.25

21. Article XVI of GATT 1994 deals with subsidies. 22. Section 269T, Customs Act. 23. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., p. 72. 24. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., p. 2. 25. Ibid., p. 3.

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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A person who believes that dumped or subsided goods have caused, or threaten to cause, material injury to an Australian industry producing ‘like’ goods can apply for the publication of a dumping or countervailing duty notice which can result in the imposition of measures.

Applications need to be supported by a specified proportion of domestic producers of the good and provide detailed information supporting the claims of dumping or subsidisation of exports and injury to the domestic manufacturer. An application needs to demonstrate that the injury is caused by the dumping or subsidisation. The required information includes four years detailed sales and cost data from the applicant industry as well as details on the market, competitors and sales and cost information for exports.

Customs has 20 days to examine the application and decide whether or not to reject it. If there is sufficient evidence to initiate an investigation, the scope, process and timeframes for the investigation are publicly notified. On initiating an investigation, interested parties (including importers and exporters) are contacted and given the opportunity to participate in the investigation and make submissions.

No earlier than 60 days after an investigation is initiated, provisional measures (usually in the form of securities) may be imposed on importers to prevent material injury occurring to the Australian industry while the investigation continues.

A Statement of Essential Facts (SEF) must be published within 110 days of the initiation of an investigation unless the Minister grants an extension. The SEF summarises the facts of the investigation and forms the basis of the final recommendations to the Minister. All interested parties have 20 days to make submissions in response to the SEF.

In particular circumstances, for example where there is a finding that goods have not been dumped (or subsidised), the Customs CEO must terminate the investigation.

A final report and recommendations must be provided to the Minister within 155 days of initiating the investigation unless the Minister has granted an extension. The Minister then decides whether anti-dumping and/or countervailing measures should be imposed or whether to accept price undertakings offered by overseas suppliers. In most cases, the Minister must make a decision within 30 days of receiving this report.26

After a measure has been in place for 12 months, any party affected by the measure may seek a review of the level of the measure or the ongoing need for the measure.27 A variable factor review involves a reassessment of the basis for the calculation of the level of measures imposed. Variable factors include the normal value (usually the domestic selling price in the country of export), the export price of the goods to Australia, and the non-injurious price (a price at which the goods could

26. The 30 day period does not apply if the Minister considers that there are special circumstances that prevent the decision being made in that period - section 269ZHG of the Customs Act. 27. Division 5 of Part XVB of the Customs Act deals with the review of anti-dumping measures.

10 Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012 [and]

Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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be exported without injuring the Australian industry). A revocation review is a reassessment of the ongoing need for measures.

As with initial investigations, variable factor and revocation reviews are subject to a 155 day timeframe unless the Minister grants an extension. New exporters may apply for an accelerated review of the level of measures applying to their imports.28 Accelerated reviews must be completed within 100 days from initiation of the review.29 Again, in the absence of special circumstances, the Minister must make a decision within 30 days of receiving the Customs CEO’s report.

Australia’s World Trade Organization (WTO) commitments

At the conclusion of the Uruguay Round of multilateral trade negotiations in Marrakesh on 15 April 1994, the members of the Trade Negotiations Committee signed two international treaties, the Final Act Embodying the Results of the Uruguay Round Multilateral Trade Negotiations (the Final Act) and the Agreement Establishing the World Trade Organization (Agreement on the WTO).30

The Final Act provides that the members of the WTO will have their competent authorities approve the Agreement on the WTO and its annexes, as well as the various Ministerial declarations and decisions. Article XVI of the Final Act provides that:

Each Member shall ensure the conformity of its laws, regulations and administrative processes with its obligations as provided in the annexed Agreements.

Amongst the Agreements annexed to the Final Act is the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti-Dumping Agreement or ADA).

Article 1 of the ADA binds signatories to the Principles governing the application of the provisions of the ADA:

An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti-dumping legislation or regulations.

Article 18.1 of the ADA restricts member countries from taking any specific action against dumping except in accordance with the provisions of the ADA:

28. Division 6 of Part XVB of the Customs Act deals with accelerated reviews. 29. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., pp. 30-31. 30. This section was drawn from M Priestly, Customs Amendment (Anti-dumping Improvements) Bill 2011, Bills Digest, no. 47, 2011-12, Parliamentary Library, Canberra, 2011, pp. 5-6, viewed 20 April 2012,

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F1078758 %22

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.

As a signatory to the Final Act and the Agreement on the WTO, Australia automatically acceded to the ADA and changes to the anti-dumping legislation were enacted in 1995 to bring the legislation into conformity with the ADA.31 But as the then Minister advised the House, Australia’s implementation of the ADA did not alter the anti-dumping legislation in any fundamental sense.32

To emphasise conformity with the ADA, the 1998 amendments inserted a new provision requiring the Minister to have regard to Australia’s international obligations under the WTO.33

Policy development and recent implementation

The 22nd meeting of the Council of Australian Governments (COAG) on 3 July 2008 ended with a commitment by all Australian governments to continue national competition reform and, as part of the economy-wide reform agenda, to refer the effectiveness of Australia’s anti-dumping system to the Productivity Commission for review.34 The COAG communiqué identified Australia’s anti-dumping system as one of a number of priority areas for competition reform.35

The Review by the Productivity Commission was finalised at the end of 2009 and released publicly in May 2010.36 The Review was conducted at a time of renewed calls for protection; the pressure of which intensified following the Global Financial Crisis (GFC) and the winding-back of GFC stimulus spending. Trade negotiations between Australia and China to secure a comprehensive free trade agreement further intensified the pressure for an effective anti-dumping system.37

Also influential in shaping this suite of reforms was a Private Member’s Bill, the Customs Amendment (Anti-Dumping) Bill 2011, introduced on 2 March 2011 by Senator Xenophon. The Bill

31. Customs Legislation (World Trade Organization Amendments) Act 1994. See Customs Legislation (World Trade Organization Amendments) Bill 1994, Bills Digest, no. 172, 1994, Parliamentary Library, Canberra, viewed 5 September 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FB6Z10%2 2

32. G Bilney, ‘Second reading speech: Copyright (World Trade Organization Amendments Bill) 1994 and cognate Bills’, House of Representatives, Debates, 18 October 1994, p. 2191, viewed 7 June 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=customrank;page=0;query=Author SpeakerReporter%3Abilney%20Title%3Acopyright%20Date%3A01%2F10%2F1994%20%3E%3E%2031%2F10%2F1994 %20Dataset%3Ahansardr,hansardr80,hansards,hansards80;rec=0;resCount=Default

33. Subsection 269TAG(5), Customs Act. 34. Some of this section was drawn from M Priestly, op. cit., p. 3. 35. Council of Australian Governments’ Meeting, Communiqué, Sydney, 3 July 2008, p. 2, viewed 20 April 2012, http://www.coag.gov.au/coag_meeting_outcomes/2008-07-03/docs/communique20080703.pdf

36. Productivity Commission, Australia’s anti-dumping and countervailing system, Inquiry report no. 48, Commonwealth of Australia, Canberra, 18 December 2009, viewed 20 April 2012, http://www.pc.gov.au/__data/assets/pdf_file/0006/93750/anti-dumping.pdf

37. M Priestly, op. cit., p. 3.

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proposed both minor and substantial amendments to the Customs Act to change the way anti-dumping investigations were conducted. The Bill sought to achieve timely and effective outcomes for manufacturers facing competition from dumped or subsidised imports.

In his second reading speech, Senator Xenophon gave expression to the public statements of local manufacturers and trade unions supporting a revisitation of the WTO anti-dumping disciplines:

... while there are international rules around dumping, under the World Trade Organization’s Anti-Dumping Agreement (Agreement on Implementation of Article VI (Anti-dumping)) which was finalised during the Uruguay Round in 1994 and sets up a framework for how countries can implement anti-dumping duties, the appropriateness and application of these rules needs to be seriously re-considered.

Indeed, it should not be a case of - ‘They’re the rules, no questions asked’, rather as circumstances change and situations emerge the system needs to adapt in the interest of local industry and the Australian Parliament needs to act in the interest of Australian industry and Australian jobs.

38

The Customs Amendment (Anti-Dumping) Bill 2011 was referred to the Senate Standing Committees on Economics for inquiry and report. In its report, the Committee broadly supported the current arrangements. At paragraph 10.2 of the report, the Committee stated:

The committee recommends that the Senate reject the majority of the amendments proposed by the Bill. Of primary concern is that, if enacted, many of the proposals:

- could result in an unfair burden being imposed on various parties which they would be unlikely to meet

- are likely not to meet their stated objectives in practice

- would be practically difficult for Customs to administer or

- are likely to be non-compliant with Australia’s WTO obligations. 39

However, subject to those comments, the Committee supported items 1, 2 and 32 in Schedule 1 of the Bill.40 These items proposed to amend the definitions of ‘affected party’ and ‘interested party’ to include trade unions.

38. N Xenophon, ‘Second reading speech: Customs Amendment (Anti-Dumping) Bill 2011’, Senate, Debates, 2 March 2011, pp. 972-973, viewed 20 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query%3DBillId_Phrase%3A%22s821%22%20Dataset %3Ahansardr,hansards%20Title%3A%22second%20reading%22;rec%3D0

39. Senate Economics Legislation Committee, ‘Customs Amendment (Anti-Dumping) Bill 2011’, Canberra, 30 August 2011, p. 103. 40. Ibid., pp. 109-10, Table 10.1: summary of the Committee’s view on the compliance of the items in Schedule 1 of the Bill with Australia’s WTO obligations.

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Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012

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The Government accepted, either in full or in part, 15 of the 20 recommendations of the Productivity Commission’s anti‐dumping report. It also stated that it was responding to the concerns raised by Senator Xenophon’s Private Member’s Bill as well as the views of state and territory governments and other stakeholders.

Another source of the reforms to the anti-dumping regime has been the International Trade Remedies Forum. This group is a stakeholder body that is made up of 21 manufacturers, producers, importers, industry associations, unions and relevant government agencies.41 The Government has indicated that it will implement all the recommendations made in the two reports that have been released by the Forum.42

The broad suite of measures to be adopted included:

 improved timeliness through:

- a 45 per cent increase in Customs staff working on anti‐dumping issues over the

12 months from June 2011 to ensure cases are dealt with more efficiently - introducing provisional measures at an earlier stage to remedy the negative effects of

dumping sooner and - introducing a 30-day time limit for Ministerial decisions on anti‐dumping cases.

 stronger compliance through:

- a dedicated resource within Customs to boost monitoring of measures to ensure

compliance and - combating attempts to circumvent anti‐dumping duties.

 improved decision making through:

- greater use of trade and industry experts in investigating complaints

- the introduction of a more rigorous appeals process supported by more resources

- clarifying the list of injury factors that can be claimed by domestic industry, and

clarifying Customs’ approach to injury determinations and - providing flexibility in allowing extensions of time to complete complex cases.

 better access to the anti‐dumping system through

- a new Support Officer to support small and medium businesses and downstream

manufacturers and producers to actively participate in anti‐dumping investigations - improving access to imports and subsidies data, and clarifying the data requirements for

making an application

41. J Clare, op. cit. 42. Ibid., and International Trade Remedies Forum, Market situation working group report to government, Canberra, December 2011 (released 21 March 2012), viewed 24 April 2012, http://www.customs.gov.au/webdata/resources/files/MarketSituationWorkingGroupReporttoGovernment.pdf

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- clarifying the parties who can participate in investigations to include relevant industry

associations, unions and downstream industry and - providing a more flexible basis for parties wishing to seek a review of existing measures.

 greater consistency with other countries through:

- regular consideration of the practices and decisions of other countries and

- allowing Australian companies to combat a wider range of subsidies. 43

Apparently, some 29 separate reforms to the anti-dumping regime are included in this package of measures.44

The first tranche of these reforms took effect from 24 October 2011 through the Customs Amendment (Anti-dumping Improvement) Act 2011.45

The second tranche of these reforms is contained in the Customs Amendment (Anti-Dumping Improvements) Act (No. 2) 2011, which is still before the Senate.

The Bills considered in this Digest are the third tranche of the changes to the anti-dumping regime. As of the date of writing a fourth (and final) tranche has yet to be introduced to Parliament.46

Basis of policy commitment

These changes were jointly announced on 22 June 2011 by the then Minister for Home Affairs and Justice and the Minister for Trade.47 A policy paper, entitled Streamlining Australia’s anti-dumping system, released in June 2011, contains the background to the proposed changes.48

43. B O’Connor (then Minister for Home Affairs and Justice) and Dr C Emerson (Minister for Trade), Government combats dumping and helps support local jobs, media release, Canberra, 22 June 2011, viewed 20 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F865936%22

44. B O’Connor (then Minister for Home Affairs and Justice), Second tranche of anti-dumping improvements introduced to Parliament, media release, 23 November 2011, viewed 16 May 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1248891%22

45. Ibid., and B O’Connor (then Minister for Home Affairs and Justice), Legislation to help improve Australia’s anti-dumping system, media release, 6 July 2011. 46. J Clare (Minister for Home Affairs), ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2012’, House of Representatives, Debates, 21 March 2012, p. 3688, viewed 7 June 2012,

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=customrank;page=0;query=Author SpeakerReporter%3Aclare%20Title%3Acustoms%20Date%3A01%2F03%2F2012%20%3E%3E%2031%2F03%2F2012% 20Dataset%3Ahansardr,hansardr80,hansards,hansards80;rec=0;resCount=Default 47. B O’Connor (then Minister for Home Affairs and Justice) and Dr C Emerson (Minister for Trade), Government combats dumping and helps support local jobs, media release, Canberra, 22 June 2011, op. cit. 48. Australian Customs and Border Protection Service, Streamlining Australia’s anti-dumping system: an effective anti-dumping and countervailing system for Australia, Canberra, June 2011, viewed 24 April 2012, http://www.customs.gov.au/webdata/resources/files/ACBPSADSPolicyStatement2011.pdf

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Committee consideration

As at the date of writing, these Bills had not yet been referred to a Parliamentary Committee.

Policy position of non-government parties/independents

In commenting on the legislation implementing the second tranche of these reforms, the Shadow Minister for Innovation, Industry and Science indicated the Coalition’s broad support for the Government’s overall package of reforms to the anti-dumping regime.49

However, the Coalition has outlined its own approach to reforming the anti-dumping regime, as follows:

 transfer anti-dumping responsibilities from Customs to the Department of Industry  reverse the onus of proof in anti-dumping investigations (that is, require foreign business subject to an anti-dumping action that has lasted for more than 60 days to demonstrate that they are not dumping goods into Australia)

 commit more funding for anti-dumping investigations  hire an additional 20 specialist anti-dumping investigators  introduce more stringent and rigorous enforcement of deadlines for submissions  crack down on overseas producers who don’t co-operate with anti-dumping investigations and  strengthen enforcement of the provisions of the WTO Agreement on subsidies and

countervailing measures.50

Senator Xenophon is a strong supporter of taking effective anti-dumping action against imports. As noted above, he introduced an influential Private Member’s Bill into Parliament on this matter.51

Position of major interest groups

The Australian Industry Group has expressed strong support for the Government’s reform of the anti-dumping regime.52

49. S Mirabella (Shadow Minister for Innovation, Industry and Science), ‘Second reading speech: Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011’, House of Representatives, Debates, 27 February 2012, pp. 1836 and following, viewed 20 April 2012, http://parlinfo/parlInfo/genpdf/chamber/hansardr/dfa1725a-aa28-48db-ba56-7995bad31f8c/0139/hansard_frag.pdf;fileType=application%2Fpdf

50. T Abbott (Leader of the Opposition) and S Mirabella (Shadow Minister for Innovation, Industry and Science), The Coalition’s plan to strengthen Australia’s anti-dumping regime, joint media release, Canberra, 7 November 2011, viewed 20 April 2012, http://parlinfo/parlInfo/download/media/pressrel/1209677/upload_binary/1209677.pdf;fileType=application/pdf#s earch=%22Strengthen%20Australia's%20Anti-Dumping%20Regime%22

51. N Xenophon, Campaigns, ‘Dumping’, nickxenophon.com.au, viewed 20 April 2012, http://www.nickxenophon.com.au/dumping

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Press reports indicate that seven major Australian manufacturers consider that the current reforms do not go far enough and are seeking an even stricter anti-dumping regime. These comments were made against the background of recent declines in the Australian manufacturing sector.53 The Construction, Forestry, Mining and Energy Union reportedly also seeks a stronger anti-dumping regime than that proposed by the Government.54 Other unions have also reportedly expressed similar views.55

Financial implications

The relevant Explanatory Memoranda note that:

The Australian Government has provided $10.4 million over the forward estimates to be absorbed by Australia’s Customs and Border Protection Service for the implementation of the June 2011 reforms to the anti-dumping system of which this Bill forms part. 56

Key provisions - Improvements Bill

Item 4 of Schedule 1 of the Improvements Bill inserts new section 269TAACA into Part XVB of the Customs Act. Part XVB:

52. Australian Industry Group, Anti-dumping measures a positive step, media release, 2011, viewed 20 April 2012, http://www.aigroup.com.au/portal/site/aig/template.MAXIMIZE/mediacentre/releases/archive2011/?javax.portlet.t pst=b00a3493e0d157bded4387101026a0a0_ws_MX&javax.portlet.prp_b00a3493e0d157bded4387101026a0a0=ind ex%3D1%26docName%3DAnti-dumping%2Bmeasures%2Ba%2Bpositive%2Bstep%26viewID%3Dcontent%26folderPath%3D%252FLIVE_CONTENT%2 52FMedia%2BReleases%252F2011%252FJune%252F&javax.portlet.begCacheTok=com.vignette.cachetoken&javax.po rtlet.endCacheTok=com.vignette.cachetoken and Australian Industry Group, Comment on passage of anti-dumping measures, media release, 13 October 2011, viewed 20 April 2012, https://www.aigroup.com.au/portal/site/aig/template.MAXIMIZE/menuitem.da9755ab45150402dabdc0fe1026a0a0 /?javax.portlet.tpst=45d3ff6ff99c77712aec2f100141a0a0_ws_MX&javax.portlet.prp_45d3ff6ff99c77712aec2f100141 a0a0=index%3D3%26docName%3DComment%2Bon%2Bpassage%2Bof%2Banti-%2Bdumping%2Bmeasures%26viewID%3Dcontent%26folderPath%3D%252FLIVE_CONTENT%252FMedia%2BRelease s%252F2011%252FOctober%252F&javax.portlet.begCacheTok=com.vignette.cachetoken&javax.portlet.endCacheTok =com.vignette.cachetoken

53. A Hepworth and A Aikman, ‘Bosses urge war on Asian dumping’, The Australian, 28 March 2012, p. 1, viewed 20 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1527751%22

54. D Crowe, ‘Union backs Coalition on dumping’, The Australian Financial Review, 21 November 2011, p. 5, viewed 20 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1240770%22

55. G Kitney, ‘Dumping threat overstated’, The Australian Financial Review, 31 August 2011, p. 8, viewed 20 April 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2F1045350%22 56. Explanatory Memorandum, Customs Tariff (Anti-Dumping) Amendment Bill (No. 1) 2012, House of Representatives, Canberra, 21 March 2012, p. 2, and Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements)

Bill (No. 2) 2012, House of Representatives, Canberra, 21 March 2012, p. 2.

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deals with the taking of anti-dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. 57

Part XVB of the Customs Act allows an application to be made to Customs on behalf of an Australian industry seeking the imposition of anti-dumping or countervailing measures.58 If Customs determines that the industry’s claims warrant exploration, it may launch an investigation. Any investigation must be notified to the public.59 The public notice must invite submissions from interested parties.60 Customs also writes directly to all importers and exporters of the relevant good, to invite them to participate in the investigation.61 In addition, where an application for a countervailing duty notice62 is received, Customs must notify the relevant foreign government(s) before the public notice of an investigation is made.63 The notification to the foreign government(s) must invite the foreign government to consult with the Customs CEO in relation to whether any countervailable subsidies exist and, if they do exist, are causing or are likely to cause material injury to an Australian industry producing like goods.64 Exporters and foreign governments must be provided with a non-confidential copy of the application for anti-dumping or countervailing measures as soon as practicable after the CEO decides to investigate.65

New section 269TAACA of the Customs Act sets out the approach that may be taken when the Customs CEO is satisfied that an importer/exporter or foreign government has not provided information that is considered relevant to the investigation within a reasonable period, or has significantly impeded the investigation. In such cases the Customs CEO or Minister may, when determining whether a countervailable subsidy has been received in relation to particular goods, or in determining the amount of such a countervailable subsidy, act on the basis of all facts available to the CEO or Minister and may make assumptions that they consider reasonable. In addition to applying to investigations into whether countervailing measures should be imposed, this approach may also be applied in relation to reviews of existing measures under Division 5 of Part XVB of the Customs Act and inquiries into whether measures should be continued beyond their expiry, under Division 6A of Part XVB of the Customs Act.

The Explanatory Memorandum to the Improvements Bill provides that new section 269TAACA will ‘partially implement the proposal to amend the subsidies provisions in the Customs Act to better

57. Subsection 269SM(1) of the Customs Act. This provision gives an overview of Part XVB. 58. Section 269TB of the Customs Act. 59. Section 269TC of the Customs Act. 60. Paragraph 269TC(4)(c) of the Customs Act. 61. Australian Customs and Border Protection Service (Customs), ‘Anti-dumping: what action may be taken?’, Customs

website, viewed 22 May 2012, http://www.customs.gov.au/site/page5717.asp 62. As set out in the Background of this Bills Digest (under Definitions) countervailing measures or duties are designed to counteract the effects of a countervailable subsidy. 63. Subsection 269TB(2B) of the Customs Act. 64. Subsection 269TB(2C) of the Customs Act. 65. Subsection 269TC(7) of the Customs Act.

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reflect definitions and operative provisions of the ASCM [the WTO Agreement on Subsidies and Countervailing Measures]’.66 In particular, Article 12.7 of the ASCM provides that:

In cases in which any interested Member or interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.

67

Item 6 of Schedule 1 of the Improvements Bill repeals current subsection 269TAC(13) of the Customs Act.

Existing section 269TAC of the Customs Act deals with the calculation of the normal price of a good in its country of origin. Current subsection 269TAC(13) provides that the Minister must not include any profit component when calculating the normal price of a good, when subsection 269TAC(2) is applied. This latter subsection applies where:

 the market for like goods in question is a low volume one in the country of origin  there is no market for like goods in the country of origin  because of the market situation in the country of origin, sales in that market are unsuitable for determining a normal price

 sales of like goods are not conducted at arm’s length in the country of origin or  it is neither possible nor practicable to obtain information on the sales of like goods by other sellers (other than the importer of the goods in question) within a reasonable timeframe.

The effect of this particular amendment is to allow the inclusion of a profit component in the calculation of a normal price in the above circumstances. However, there is no guidance on how to calculate such a component in the Customs Act.

Section 269ZHF of the Customs Act provides that after conducting a continuation inquiry68, the Customs CEO must give a report to the Minister containing recommendations. Currently the recommendations that may be made in the report are limited to either recommending that the anti-dumping measures be continued or recommending that the measures cease on the expiry date.69 Item 7 of Schedule 1 of the Improvements Bill repeals existing paragraphs 269ZHF(1)(a) and (b) of the Customs Act and substitutes new paragraphs with the same numbering. The main effect of these amendments is to allow the Customs CEO to recommend a wider range of actions to the Minister as an outcome of a continuation inquiry. The new wider range of options mirror the

66. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., p. 5. 67. Ibid.

68. As set out in the Background of this Bills Digest (under Definitions) a continuation inquiry is an inquiry to determine whether dumping notices or countervailing duty notices will continue past their statutory five year limits. 69. Current subsection 269ZHF(1) of the Customs Act.

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options that are currently available after a review of anti-dumping measures under Division 5 of Part XVB of the Customs Act.

Item 9 of Schedule 1 of the Improvements Bill repeals existing paragraphs 269ZHG(4)(a), (b) and (c) of the Customs Act and substitutes new paragraphs 269ZHG(4)(a) and (b). Again, if the Minister has decided, after considering an application for the continuation of an anti-dumping measure under Division 6A of Part XVB of the Customs Act, to continue the measure, these amendments will provide a wider range of options for doing so.

In particular new subparagraph 269ZHG(4)(a)(iii) of the Customs Act will allow the Minister to specify that a particular anti-dumping notice continue after its expiry date, but be based on different specified variable factors in relation to a particular exporter (into Australia), or exporters.

The Explanatory Memorandum to the Improvements Bill notes that items 7 and 9 of Schedule 1 of that Bill, in particular, remove the need for a separate review of anti-dumping measures and a continuation inquiry occurring in close proximity to each other.70 This is because the full range of options available after a review of anti-dumping measures will now be available after a continuation inquiry.

Key provisions - Amendment Bill

New forms of interim dumping duty

Section 8 of the Dumping Duty Act relates to the imposition and calculation of dumping duties in circumstances where the Minister has determined that dumped goods have caused, or threatened, material injury to the Australian economy. Item 1 of Schedule 1 of the Amendment Bill repeals subsections 8(4) to 8(5B) of the Dumping Duty Act and replaces them with new subsections 8(5) to 8(5BE). These provisions deal with the calculation of ‘interim dumping duties’. Interim dumping duties are payable on goods that are the subject of a Ministerial notice under subsection 269TG(1) or (2) of the Customs Act71, pending final assessment of the dumping duty payable on the goods.72 Currently, the Minister may only impose a combination form of interim dumping duty, with a fixed component and a variable component. The key change made by the Amendment Bill will allow regulations to be made to prescribe additional forms of interim dumping duty. While these new forms are not set out in the Amendment Bill, the Explanatory Memorandum to the Bill explains that the forms of interim duty to be prescribed in the regulations will be:

 ad valorem (or percentage) duty  a fixed amount of duty

70. Explanatory Memorandum, Customs Amendment (Anti-dumping Improvements) Bill (No. 2) 2011, op. cit., p. 3. 71. That is, a ‘dumping duty notice’. 72. Subsection 8(3) of the Dumping Duty Act.

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 a combination duty or  floor price.73

‘Lesser duty’ rule

Under amended section 8 of the Dumping Duty Act, if the non-injurious price of the goods is less than the normal value of the good, the Minister must have regard to the desirability of specifying a method of determining the interim dumping duty, such that the sum of the ascertained export price of the goods and the interim dumping duty payable on those goods will not exceed the non-injurious price. As is the case with the current provision, amended section 8 reflects the above mentioned ‘lesser duty rule’, which is an obligation arising from Article 8.1 of the Anti-Dumping Agreement. As set out in the Explanatory Memorandum to the Amendment Bill, Article 8.1 provides that it

.. is desirable that ... the [dumping] duty be less than the margin [ie the normal value of the goods [minus the] export price of the goods], if such lesser duty would be adequate to remove the injury to the domestic industry. 74

New subsections 8(5B) and 8(5BA) require the Minister to set the level of dumping or countervailing duty so that the final price in Australia is not greater than the non-injurious price, even where this non-injurious price is less than that good’s normal price. Or expressed another way, even after the imposition of a dumping or countervailing duty, the goods selling price in Australia could well be less than its selling price in its country of origin.

It is important to note that the requirement for the Minister to consider imposing an interim dumping duty that accords with the lesser duty rule is included in the current Dumping Duty Act. Thus, this amendment does not materially alter the policy behind this legislation.

73. These terms are explained in the Background section of this Digest. 74. Explanatory Memorandum, Customs Tariff (Anti-dumping) Amendment Bill (No. 1) 2012, House of Representatives, Canberra, March 2012, p. 6, viewed 23 May 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4777_ems_

8b772468-8ee3-4867-9c22-e36df4b68513%22

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