Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Customs Amendment (Anti-dumping Improvements) Bill 2011

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2010-2011

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

CUSTOMS AMENDMENT (ANTI-DUMPING IMPROVEMENTS) BILL 2011

 

 

REPLACEMENT EXPLANATORY MEMORANDUM

 

 (Circulated by authority of the Minister for Home Affairs,

the Honourable Brendan O’Connor MP)

 

THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM PRESENTED TO THE HOUSE OF REPRESENTATIVES ON 6 JULY 2011

 



CUSTOMS AMENDMENT (ANTI-DUMPING IMPROVEMENTS) BILL 2011

 

      OUTLINE

1.              The purpose of this Bill is to amend Division 5 of Part XVB of the Customs Act 1901 (the Customs Act) to partially implement the Government’s response to the Productivity Commission Report into Australia’s anti-dumping regime and respond to Senator Xenophon’s proposed amendments to the Anti-Dumping system by:

a)     Providing that the Minister will make a decision within 30 days of receiving a report on an investigation, continuation inquiry, review of measures or a report following a review of a decision by the Trade Measures Review Officer. 

 

b)     Providing that the Minister may consider any impacts on jobs and any impact on investment in the domestic industry producing like goods during an investigation.

 

c)     Amending the legislation to reflect the full range of actionable subsidies provided by the WTO Anti-Dumping Agreement and Agreement on Subsidies and Countervailing Measures (the WTO Agreements).

 

d)     Amending the current definition of “interested party” in relation to anti-dumping and subsidy investigations to clarify that industry associations, unions and downstream industry (whether or not they are an importer) are included.

 

FINANCIAL IMPACT STATEMENT

2.              The Bill has no financial impact.



CUSTOMS AMENDMENT (anti-dumping IMPROVEMENTS) BILL 2011

NOTES ON CLAUSES

Clause 1 - Short title

3.              This clause provides for the Bill, when enacted, to be cited as the Customs Amendment (Anti-dumping Improvements) Act 2011.

Clause 2 - Commencement

4.              Subclause (1) provides that each provision of this Act specified in column 1 of the table in that subclause commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. This subclause also provides that any other statement in column 2 of the table has effect according to its terms.

5.              Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent. 

6.              Item 2 of the table provides that Schedule 1 commences on a day to be fixed by Proclamation, and if any of the provisions do not commence within 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

            Clause 3 - Schedule

7.              This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule.  In this Bill, the Customs Act is being amended.

8.              The clause also provides that the other items of the Schedules have effect according to their terms.  This is a standard enabling clause for transitional, savings and application items in amending legislation. 



Schedule 1 - AMENDMENTs of THE CUSTOMS ACT 1901

           

            BACKGROUND

9.              The Government will introduce a raft of legislative amendments in its response to the Productivity Commission’s 2009 review of Australia’s anti-dumping system.

10.           As a part of this response, four of the proposals have been identified as non-controversial and capable of expedited introduction. 

 

1. Time limit on Ministerial decisions

11.           There is currently no time limit set for when the Minister is required to make a decision after receiving a recommendation on an investigation, continuation inquiry, review of measures, duty assessment or a recommendation following administrative review of a decision. There are clear benefits in imposing a time limit on Ministerial decision-making, providing greater certainty for parties, and ultimately reducing the overall timeframe to conclude an investigation. 

12.           It is proposed to insert a time limit to provide that, subject to extenuating circumstances, the Minister will make a decision within 30 days of receiving a recommendation on an investigation, continuation inquiry, review of measures (including an accelerated review), duty assessment or a report following a review of a decision by the Trade Measures Review Officer.

13.           The condition that the Minister would, absent extenuating circumstances justifying a longer period for consideration, give public notice of his or her decisions within 30 days (the condition), would apply to the Minister’s decisions under Division 3, Division 4, Division 5, Division 6, Division 6A and Division 9 of Part XVB of the Customs Act.

14.           Where a longer period is considered appropriate the Minister must give public notice of the longer period in accordance with section 269ZI of the Customs Act.

 

2 . Material injury

15.           The purpose of this amendment is to amend the legislation to reflect that the Minister may consider any impact on jobs or any impact on investment in the domestic industry producing like goods.

16.           The new considerations in determining material injury will mean the Minister may refer:

-        not only to the number of persons employed and level of wages (as contained in the Act), but also to any impact on jobs; and

-        not only to investment in the industry, level of return on investment and ability to raise capital (as contained in the Act), but also to any impact on investment;

in the domestic industry producing like goods

17.           The purpose of this amendment is to make it clear that in determining whether the Australian industry has suffered material injury, the Minister may have regard to:

-        any impact on jobs, including any changes to the terms and conditions of employment of the workforce of the relevant manufacturers producing like goods such as the number of hours worked and the incidence of part-time employment; and

-        any impact on investment in the industry producing like goods.

 

3 . Updating subsidies provisions

18.           The purpose of this amendment is to reflect the full range of actionable subsidies provided by the World Trade Organization (WTO) Agreement on Subsidies and WTO Countervailing Measures (ASCM) and Agreement on Agriculture (the WTO Agreements).

19.           The WTO Agreements limit the kinds of subsidies that can be the subject of countervailing measures. The exclusion of certain subsidies has since expired - some subsidies became actionable in 1999 and others in 2004. Australia’s anti-dumping law (Part XVB of the Customs Act) has not been updated to reflect this, and as a result applicants cannot seek measures in relation to certain subsidies that are now actionable under WTO rules.  To address this oversight, it is proposed that the Customs Act now be amended to reflect the full range of actionable subsidies under the WTO Agreements including certain assistance:

-        for research activities conducted by firms or by higher education and research establishments;

-        for disadvantaged regions pursuant to a general framework of regional development;

-        to enable firms to adapt to new environmental requirements; and

-        for a variety of government programs that provide services or benefits to agriculture research programs, pest and disease control, training, marketing and promotion, inspection and advisory services, infrastructure, public purchasing of food stockpiles and purchases for food aid.

20.           Due to the operation of Article 31 of the ASCM Agreement and a subsequent review by the WTO Committee on Subsidies and Countervailing Measures, the provisions of Article 8 were allowed to lapse at the end of 1999. The subsidies referred to in s.269TAAC(6)(a) are therefore now actionable under WTO rules.

21.           Similarly, the ‘green box’ domestic support measures as described in Annex 2 of the Agreement on Agriculture were to be treated as non actionable subsidies for the purposes of imposing countervailing duties during that Agreement’s implementation period.  This implementation period ended in 2004, and therefore such ‘domestic supports’ are now actionable under WTO rules.

 

4 . Parties to proceedings 

22.           The purpose of this amendment is to clarify that the definition of interested party includes industry associations, trade unions and downstream industry members (whether or not they are an importer).

23.           The proposed changes to the definition of ‘interested party’ will not affect the present standing requirements [1] , such that Customs and Border Protection will only be able to initiate investigations in the same way that it can now. However, it will provide a broader range of stakeholders with rights to participate in anti-dumping investigations.

24.           It is intended that s.269T of the Customs Act include:

-        industry associations directly concerned with the production or manufacture of like goods in Australia—unlike the existing inclusion of “trade organisations”, the industry associations would not need to have a majority of members directly concerned with the production or manufacture of like goods;

-        trade unions directly concerned with the production or manufacture of like goods in Australia—unlike the existing inclusion of “trade organisations”, the trade unions would not need to have a majority of its members directly concerned with the production or manufacture of like goods; and

-        downstream industry members, being manufacturers or producers that use the goods the subject of the application or like goods as inputs to the production or manufacture of ‘downstream’ products.

Item 1 - Subsection 269T(1) (definition of Agreement on Agriculture )

25.           This item amends subsection 269T(1) by repealing the definition of Agreement on Agriculture. The purpose of this amendment is to reflect the fact that this Bill will remove any reference to the Agreement on Agriculture from Part XVB of the Customs Act, and therefore this definition will be redundant.

Item 2 - Subsection 269T(1) (paragraph (b) of the definition of interested party )

26.           This item amends subsection 269T(1), paragraph (b) by amending the definition of ‘interested party’, to include a body representing, or representing a portion of, the industry producing, or likely to be established to produce, like goods. This reference to ‘body’ is intended to capture unincorporated bodies not included within the definition of ‘person’ in the Acts Interpretation Act 1901 .  The purpose of this amendment is to expressly recognise industry associations as having certain rights to participate in anti-dumping and/or countervailing investigations.   

            Item 3 - Subsection 269T(1) (at the end of the definition of interested party )

27.           This item amends subsection 269T(1) by inserting new paragraphs (g) and (h) into the definition of ‘interested party’. The purpose of new paragraph (g) is to clarify that the definition includes a trade union representing one or more persons employed in the Australian industry producing, or likely to produce, like goods.  The purpose of new paragraph (h) is to clarify that the definition also includes a person who uses the goods the subject of the application, or like goods, in the production or manufacture of other goods in Australia. The purpose of this amendment is to expressly recognise industry organisations, trade unions and downstream industry members (whether or not they are an importer) as having certain rights to participate in anti-dumping and/or countervailing investigations.

            Item 4 - Subparagraph 269TAAC(1)

28.           This item repeals subsection 269TAAC(1) and substitutes another paragraph that excludes a reference to excluded subsidies. The purpose of this amendment is to reflect the full range of subsidies now actionable under the WTO Agreement on Subsidies and Countervailing Measures and the WTO Agreement on Agriculture.

            Item 5 - Subparagraph 269TAAC(6)

29.           This item repeals subsection 269TAAC(6), which refers to excluded subsidies. This is to reflect the fact that exclusions of certain subsidies from being actionable under the WTO Agreements have now expired.

            Item 6 - Subsection 269TAE(1)(g) and (2)(g)

30.           This item replaces the words ‘the effect’ with ‘any effect’. This amendment permits the Minister to have regard to any effect that the exportation of goods to Australia from the country of export has had or is likely to have on the relevant economic factors in relation to the Australian industry.  The purpose of this amendment is to provide the Minister further scope to examine any effect on the relevant economic factors listed in subsection 269TAE(3) for the purpose of considering whether the Australian industry has suffered material injury.

            Item 7 Paragraph 269TAE(3)(h)

31.           This item inserts new paragraph (ha) into the list of ‘relevant economic factors’ that the minister considers when determining whether the Australian industry or industry of a third country is experiencing material injury. Paragraph (ha) adds ‘the terms and conditions of employment (including the number of hours worked) of persons employed in the industry in relation to the production or manufacture of goods of that kind, or like goods’.

32.           The purpose of this amendment is to make it clear that in determining whether the Australian industry has suffered material injury, the Minister may have regard to any impact on jobs, including any changes to the terms and conditions of employment of the workforce of the relevant manufacturers producing like goods such as the number of hours worked and the incidence of part-time employment.

            Item 8 New section 269TLA

33.           Section (1) of new section 269TLA provides that the section applies to recommendations from the CEO of Customs and Border Protection concerning the imposition of dumping duty, third country dumping duty, countervailing duty or third country countervailing duty on goods.

34.           Section (2) provides that the Minister must, absent special circumstances that prevent the decision being made within that 30 day period, make a decision whether or not to publish a dumping notice or a countervailing duty notice or both within 30 days of receiving a recommendation on an investigation. The Minister may, in special circumstances, extend this period. However, when the Mistier does so, section (3) provides that the Minister must give public notice of his or her decision to extend the period, and indicate what the extended period is.

35.           Section (4) provides that the time limits prescribed in section (2) do not apply where:

-        the Minister has deferred the decision to publish or not to publish a dumping duty notice and/or a countervailing duty notice because the Minister has accepted an undertaking from an exporter or government regarding its future trade to Australia;

-        the Minister intends to publish a retrospective notice under subsection 269TN(3) and therefore provides the relevant importer with an opportunity to comment under subsection 269TN(4); or

-        the application to which the recommendation relates is withdrawn before the Minister makes a decision.

Item 9 Subsection 269Y(1A)

36.           This item inserts a requirement that the Minister must, within 30 days of receiving a recommendation from the CEO of Customs and Border Protection or the Review Officer, in relation to the assessment of duty payable by an importer, ascertain the variable factors relevant to the determination of duty payable in respect of each consignment and order the repayment of duty or the waiver of unpaid duty, as the case requires.

            Item 10 After paragraph 269ZDB(1)

37.           This item inserts new subsection (1A) and (1B). Subsection (1A) requires that a Minister make a declaration under subsection (1) concerning reviews of measures within 30 days of receiving the report from the CEO of Customs and Border Protection or, if the Minister considers there are special circumstances to prevent the declaration being made in that time, such longer period as the Minister considers appropriate.  Subsection (1B) requires the Minister to give public notice of the longer period where applicable.

            Item 11 After section 269ZG(3)

38.           This item inserts new subsection 269ZG(3A) and (3B).  Subsection (3A) requires the Minister to make a declaration under subsection (3) concerning an accelerated review of dumping duty notices or countervailing duty notices for new exporters 30 days after receiving a report from the CEO of Customs and Border Protection or if the Minister considers there are special circumstances to prevent the declaration being made in that time, such longer period as the Minister considers appropriate.  Subsection (3B) requires the Minister to give public notice of the longer period where applicable.

            Item 12 At the end of paragraph 269ZHG(1)

39.           This item inserts new subparagraph 269ZHG(1A), (1B) and (1C).  Subsection (1A) requires the Minister to make a declaration under subsection (1) concerning the continuation of anti-dumping measures before the specified expiry day, where the Minister received a report from the CEO of Customs and Border Protection less than 30 days before the specified expiry day. 

40.           Subsection (1B) requires, if subsection (1A) does not apply, the Minister to make a declaration under subsection (1) concerning the continuation of anti-dumping measures 30 days after receiving the report from the CEO of Customs and Border Protection or if the Minister considers there are special circumstances to prevent the declaration being made in that time, such longer period as the Minister considers appropriate.  Subsection (1C) requires the Minister to give public notice of the longer period where applicable.

            Item 13 After Subsection 269ZZL(2)

41.           This item inserts new subsections 269ZZL(2A) and (2B).  Subsection (2A) requires the Minister to either affirm the reviewable decision under subsection (1); or require the CEO to make further investigation and report under subsection (2); and issue public notices as required under those provisions concerning the review of reviewable Ministerial decisions, within 30 days of receiving the recommendation by the Review Officer or if the Minister considers there are special circumstances to prevent the declaration being made in that time, such longer period as the Minister considers appropriate. Subsection (2B) requires the Minister to give public notice of the longer period where applicable.

            Item 14 After subparagraph 269ZZM(1)

42.           This item inserts two new subsections 269ZZM(1A) and (1B). Subsection (1A) requires the Minister to either affirm the reviewable decision or revoke that decision and substitute a new decision under subsection 269ZZM(1) concerning the reinvestigation of findings within 30 days of receiving the report from the CEO of Customs and Border Protection or if the Minister considers there are special circumstances to prevent the declaration being made in that time, such longer period as the Minister considers appropriate. Subsection (1B) requires the Minister to give public notice of the longer period where applicable.

            Item 15 Application of amendments

43.           This item provides that the amendments made by items 2, 3, 6 and 7 apply in relation to an application lodged on or after the date on which item 15 commences.  These amendments will not affect applications that have already been initiated or that are still being processed at the time the amendments commence.

44.           This item provides that the amendments made by items 8 to 14 apply in relation to a recommendation or report received by the Minister on or after the day on which this item commences. These amendments will not affect recommendations or reports that have already been received by the Minister at the time the amendments commence.




[1] Contained in s.269TB(4)(e) and s.269TB(6) of the Customs Act.