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Customs Amendment (Anti-dumping Measures) Bill (No. 1) 2015

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 2013-2014-2015

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

Customs amendment (anti-Dumping measures) Bill (No. 1) 2015

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Industry and Science,

the Honourable Ian Macfarlane MP)



CUSTOMS AMENDMENT (ANTI-DUMPING MEASURES) BILL (NO. 1) 2015

 

OUTLINE

 

 

The purpose of the Bill is to amend the Customs Act 1901 ( Customs Act ) to strengthen Australia’s provisions dealing with the submission of information in anti-dumping and countervailing duty investigations, simplify and modernise publication provisions for anti-dumping notices, consolidate lodgement provisions for anti-dumping applications and submissions, clarify the length of the investigation period in anti-dumping matters, clarify the cumulative assessment of injury, clarify normal value provisions, clarify the calculation of the dumping margin, clarify material injury determinations, clarify effective notice periods, clarify the definition of a subsidy, amend provisions dealing with new exporters, clarify provisions regarding consideration of the lesser duty rule, streamline the processes and implement a higher procedural and legal threshold for review to be undertaken by the Anti-Dumping Review Panel ( Review Panel ) and allow the Government to replace the statutory International Trade Remedies Forum (the Forum ) with administrative business consultative arrangements.

 

Consistent with Government policy set out in ‘The Coalition Policy to Boost the Competitiveness of Australian Manufacturing’, released in August 2013, this Bill would strengthen Australia’s anti-dumping system by introducing more stringent deadlines for the submission of information to dumping and subsidisation investigations.  This Bill would reduce the period in which submissions should be lodged in response to the initiation of an investigation, review of measures, continuation inquiry or anti-circumvention inquiry from 40 to 37 days. This would tighten this requirement for submissions and align with the minimum timeframes established under the relevant World Trade Organization (WTO) agreements.  It would also allow information to be considered earlier by the Anti-Dumping Commissioner (the Commissioner ) when deciding whether a preliminary affirmative determination can be made.

 

To complement the Government’s election commitments a range of further reforms introduced by the Bill would strengthen Australia’s anti-dumping system.

 

To modernise and simplify the publication of notices related to anti-dumping processes and decisions, provisions of the Customs Act would be amended to require that notices be published electronically. Public notices made by the Commissioner and the Minister under Divisions 1 to 7 of Part XVB of the Customs Act would be required to be published on the Anti-Dumping Commission’s (the Commission ’s) website. Public notices made by the Review Panel and the Minister under Divisions 9 of Part XVB of the Customs Act would be required to be published on the Review Panel’s website.  Provisions of the Customs Act related to the lodgement and withdrawal of applications will be amended to consolidate the stipulations regarding lodgement and withdrawal. The Commissioner will be able to approve the manner of lodging applications and withdrawals under Divisions 1 to 7 of Part XVB of the Customs Act. The amendments will apply to applications, withdrawals and public notices made after the commencement of the amendments.

 

To clarify that the length of the investigation period of an anti-dumping and countervailing investigation cannot be varied, provisions related to the consideration of an application will be amended. This clarification provides guidance on the long-standing practice of the investigating authority, reduces risks to the timeliness of investigations and improves stakeholder certainty.

 

Amending the provisions regarding the consideration of cumulative assessment of injury or hindrance in the termination of an investigation ensures consistency between the information that is allowed to be considered by the Commissioner in terminating an investigation and the Minister in imposing measures. Amending the legislation clarifies that the Commissioner can consider this information in deliberating termination decisions, removing the risk that investigations would be prematurely terminated because the Commissioner could not consider the information. The amendment also improves the alignment of Australia’s anti-dumping legislation with the WTO agreements.

 

Amending the provisions regarding the calculation of the normal value in anti-dumping matters clarifies that, in Australia’s anti-dumping system, there is no specific hierarchy between the various methodologies for determining normal value. The amendment removes doubt that the Commission can calculate normal value on the basis of construction without first having regarded the use of third country prices. This clarification takes advantage of flexibility permitted under the WTO agreements and thereby improves the alignment of Australia’s provisions with those of the WTO agreements.

 

To clarify the calculation of dumping margins, provisions of the Customs Act would be amended to require that the parts of the investigation period of a dumping investigation considered for the purposes of working out whether dumping has occurred and the levels of dumping are not less than one month. The amendment clarifies that in calculating a single dumping margin for the good over the entire investigation period, the normal values and export prices of different models or types of that good can be compared over separate one month periods prior to aggregation.

 

Amending the definition of a subsidy, for the purposes of Australia’s anti-dumping system, better aligns the definition with that of the WTO Agreement on Subsidies and Countervailing Measures. The amendment provides that the receipt of a financial contribution by a government does not in and of itself confer a benefit, but that it must be determined whether that contribution provides a benefit.

 

To ensure consistency with the WTO agreements, the amendment to accelerated review provisions provides for exporters who did not export relevant goods during the investigation period, but who can show that they have since exported or will export, to access accelerated reviews. This aligns with the purpose of an accelerated review, which is to enable those who did not export during the investigation period and who are not related to the exporters or foreign producers subject to measures to access an individual dumping margin. Accelerated reviews for these exporters would not provide for an outcome whereby a new exporter would no longer be subject to measures and would be permitted only where other types of review that could provide a similar outcome are not available.

 

To clarify the period during which notices related to anti-dumping decisions remain in force, provisions of the Customs Act would be amended to require that where an undertaking converts to a duty, the duty expires five years after the undertaking was accepted, unless terminated earlier. This amendment would ensure that Australia’s anti-dumping legislation is compliant with the WTO agreements.

 

The Customs Act would be amended to require that although periods prior to the investigation period can be examined for the purpose of determining whether material injury has been caused, a determination that dumping has occurred prior to the investigation period is not permitted. The amendment better aligns Australia’s anti-dumping legislation with the WTO agreements.

 

To clarify the circumstances in which the Minister is not required to have regard to the lesser duty rule, provisions of the Customs Act would be amended to require that the Minister is not required to have regard to the lesser duty rule where a country has not submitted a notification of its subsidies, as mentioned in paragraph 1 of Article 25 of the WTO Agreement on Subsidies and Countervailing Measures, at least once in the compliance period. This amendment clarifies the circumstances in which the Minister is not required to have regard to the desirability of a lesser duty in light of the practices regarding submission of subsidy notifications under the WTO Committee on Subsidies and Countervailing Measures.

 

The Review Panel is the body that provides a limited merits review of certain decisions made by the Commissioner or the responsible Minister in anti-dumping matters.  The Review Panel and the merits review process are established under Divisions 8 and 9 of the Customs Act. The Review Panel commenced in mid-2013, replacing the previous limited merits review process, the Trade Measures Review Officer, which had existed for some years.

 

The Bill would allow for the Government to introduce a fee for applying to the Review Panel for review of anti-dumping decisions. Consistent with the principles for introducing a fee for service, the Customs Act would be amended to allow for refunds under certain circumstances and prescribe different fees for different classes of applicant or review. The fee would be established under an instrument made by the Minister.

 

The Bill would also increase the procedural and legal thresholds for applying for review by introducing requirements that an application must set out the grounds for review, set out the decision the applicant considered should have been made and set out how the grounds support the making of the applicant’s proposed decision.

 

In relation to review of certain decisions of the Minister, or of the Commissioner to make recommendations to the Minister under paragraph 269X(6)(b) or (c) of the Customs Act, the applicant must also set out how their proposed decision is materially different from the reviewable decision.

 

Where the Review Panel is not convinced that the grounds support that the original decision is not correct or preferable or that the grounds support the making of the applicant’s proposed decision the Review Panel may reject the application.

 

In relation to review of certain decisions of the Minister, or of the Commissioner to make recommendations to the Minister under paragraph 269X(6)(b) or (c) of the Customs Act, if the Review Panel is not satisfied that the applicant’s proposed decision is not materially different from the reviewable decision, the Review Panel may also reject the application for that reason.

 

The Bill would also give the Review Panel the ability to accept and reject specific grounds of an application. These amendments would improve the quality of information provided at the application stage of a review and ensure the Review Panel is only considering serious and meritorious reviews.

 

To improve the information available to the Review Panel, the Bill would amend the Customs Act to empower the Review Panel to hold a conference for the purpose of obtaining further information. This would include the ability to hold a conference prior to commencing a review in order to obtain further information from the applicant and the Commission. Consistent with the purpose of increasing information available to the Review Panel, should an applicant be invited to a conference prior to the commencement of a review and then fail to attend, the Review Panel may reject the application. For the purposes of transparency and procedural fairness, non-confidential summaries of any conferences in relation to reviews of decisions of the Minister or decisions of the Commissioner to terminate an investigation will be included on the public record.

 

The Bill would also amend the Customs Act to allow applicants for review to withdraw their application. Withdrawals would be required to be written and given in the same manner as applies to applications.

 

Parties continue to be able to apply for a judicial review of anti-dumping decisions to the Federal Court in order to resolve issues with certainty, consistent with Australia’s obligations under the relevant WTO agreements.

 

The Forum was established to provide strategic advice to the Government on the operation and reform of Australia’s anti-dumping system.  The Forum was established administratively in 2011 before its membership and the frequency of its meetings were legislated in mid-2013.  The Bill amends the Customs Act to remove the legislative establishment of the Forum.  This legislation is unnecessary as stakeholder consultation can operate under administrative arrangements.  Repealing the legislation would allow the Government to utilise more flexible administrative arrangements for stakeholder consultation about Australia’s anti-dumping system.



 

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill is expected to have a positive financial impact.  The extent of the positive financial impact will be dependent on the commencement of the Bill as the requirement to publish notices in newspapers and the Gazette will not cease and the introduction of the fee for applying for review will not commence until the Bill has commenced. There is minor expenditure associated with administering the conferences. The estimated combined magnitude of the financial impact of this Bill and the Customs Tariff (Anti-Dumping) Amendment Bill 2015 is summarised in the table below.

 

MEASURE

INDICATIVE FINANCIAL IMPACT

Anti-Dumping Review Panel

Saving of $0.74 million over from 2014-15 to 2018-19 inclusive.

Requiring electronic publishing of notices

Saving of $1.09 million over from 2014-15 to 2018-19 inclusive.

 

The savings generated would be used to offset the cost of implementing non-legislative measures of the anti-dumping reforms package, specifically the establishment of an Anti-Dumping Information Service and improvement of the International Trade Remedies Advisory Service to assist access to the system, especially for small and medium sized businesses.

 

 

 



REGULATION IMPACT STATEMENT

The amendments of this Bill, in conjunction with the non-legislative elements of the Government’s reform package, have a minor reduction in regulatory burden. The estimated average annual reduction in regulatory burden of the reform package is $0.1m.

Reducing the deadlines in which businesses can supply this information from 40 to 37 days has a negligible increase on regulatory burden for businesses responding to requests for information following the initiation of an investigation. The amendment creates a negligible education cost.

Businesses will face negligible education costs regarding the minor changes that will be made to the anti-dumping merits review legislation. Participating in the conference represents a minor regulatory increase for parties seeking review, although reductions in the number or scope of reviews as a result of the conference and the ability of the Review Panel to reject grounds will reduce the regulatory burden.

Discontinuing the Forum as a legislated body reduces the compliance burden for member businesses.  Education requirements associated with the legislation will also be removed, resulting in a negligible decrease in regulatory burden.

Provisions regarding the lodgement of documents will be standardised and simplified to reduce the complexity of the regulation.  This will decrease education related regulatory burden for businesses.

The remaining items of the Bill have nil regulatory impact as they clarify current practices and provide legal certainty.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 

CUSTOMS AMENDMENT (ANTI-DUMPING MEASURES) BILL (NO. 1) 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Bill would amend the Customs Act to reduce the period for submitting information in response to the initiation of an anti-dumping investigation, review, continuation inquiry or anti-circumvention inquiry from 40 to 37 days.  The Bill would also require anti-dumping notices to be published electronically, consolidate lodgement provisions for anti-dumping applications and submissions, clarify the length of the investigation period in anti-dumping matters, clarify the cumulative assessment of injury, clarify normal value provisions, clarify the calculation of the dumping margin, clarify material injury determinations, clarify effective notice periods, clarify the definition of a subsidy, amend provisions dealing with new exporters, clarify provisions regarding consideration of the lesser duty rule, remove the legislative provisions establishing the International Trade Remedies Forum and streamline the merits review process of the Review Panel.

Human rights implications

This Bill engages the human right to fair trial and fair hearing.

The Review Panel is the current body that provides merits review of certain decisions made by the Commissioner or the Minister in anti-dumping matters.  The Review Panel commenced in mid-2013 and replaced the previous mechanism for merits review under the anti-dumping system, the Trade Measures Review Officer.

The Bill would raise the procedural and legal threshold for parties to seek a merits review in anti-dumping matters. This would limit the rights of parties involved in anti-dumping matters who do not have grounds for the review of a decision to have that decision reconsidered on the merits of the original decision by an independent arbiter. 

Anti-dumping matters affect a range of entities including Australian manufacturers, producers and importers and foreign exporters and foreign governments. It is important that these entities have certainty in anti-dumping decisions so that they are empowered to respond appropriately when anti-dumping decisions affect them.

Previous amendments introduced a threshold that required applicants, where seeking to have a decision reviewed through the merits review process, to satisfactorily demonstrate that the decision they were appealing was not the correct or preferable decision. This was considered to be more stringent than the threshold under previous legislation. However, the current legislation provides the Review Panel with little guidance on this test. Additionally, anti-dumping investigations are inherently complex; involve numerous individual decision-making points; and in any given case there is a wide range of possible outcomes. Consequently, it has not been difficult for applicants to claim that the decision was not the correct or preferable one, and it seems the bulk of applications are accepted. That standard was designed to reduce the number of decisions that were referred for merits review. In practice, this objective has not been achieved and the number of decisions referred for review has not reduced resulting in an appeal mechanism that is resource intensive and costly to the Government. The new standard is designed to ensure that where it cannot be established that an applicant has presented sufficient grounds for establishing that the review will make a material difference the Review Panel can reject that application. The conference provides the applicant, at the discretion of the Review Panel, to support the information presented in their application. Allowing the Review Panel to reject applications that fail to establish sufficient grounds for review should allow the Review Panel to focus on more-meritorious reviews. This is consistent with the objective of delivering an efficient and effective anti-dumping system.

While the current system provides parties with a fee-free avenue for review, it also involves significant effort, delay, administration cost and uncertainty for stakeholders, for what can be arguably a limited substantive gain. The ability to introduce a fee reflects the cost of providing a merits review service to businesses and may restrict the number of less-meritorious applications submitted to the Review Panel, and that providing an independent arbiter to review decisions imposes a substantial cost on the Government. Although the Bill would impact on the right to fair trial and fair hearing, this is reasonable and proportionate to achieve the Government’s objective.

The Bill does not restrict the ability of parties involved in anti-dumping matters to seek judicial review of anti-dumping matters by the Federal Court.  Parties involved in anti-dumping matters retain recourse to judicial review under the Administrative Decisions (Judicial Review) Act 1977 .  Judicial review is also provided under section 75 of the Constitution which grants the High Court jurisdiction in any case in which the Commonwealth is a party.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations contextually are reasonable and proportionate.

 

The Minister for Industry and Science, the Honourable Ian Macfarlane MP

CUSTOMS AMENDMENT (ANTI-DUMPING MEASURES) BILL (NO. 1) 2015

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Provides for the Act to be cited as the Customs Amendment (Anti-Dumping Measures) Bill (No.1) 2015.

 

 

Clause 2 - Commencement

 

Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Act. Each provision of the Act specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

 

The table has the effect of providing for:

 

·          sections 1 to 3 and anything in this Act not elsewhere covered by this table to commence on Royal Assent;

·          Schedule 1 to commence on Proclamation or if the provision(s) do not commence within the period of 6 months on the day this Act receives Royal Assent, then they commence on the day after that period.

 

Subclause 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the Act but that information is not part of the Act.

 

Clause 3 - Schedule(s)

 

Provides that each Act that is specified in a schedule is amended or repealed as set out in the applicable items in the schedule and that any other item in a schedule has effect according to its terms.

 

 

 

 

 

 

List of abbreviations

 

‘the Act’                             Customs Amendment (Anti-dumping Measures) Act (No. 1) 2015

                                           (when enacted)

‘the Commission’               Anti-Dumping Commission         

‘the Commissioner’            The Commissioner of the Anti-Dumping Commission

‘Customs’                          Australian Customs and Border Protection Service         

‘the Customs Act’              Customs Act 1901

‘Dumping Duty Act’         Customs Tariff (Anti-Dumping) Act 1975

‘Review Panel’                  Anti-Dumping Review Panel



Schedule 1— Amendments

Part 1 Submission deadlines

Customs Act 1901

 

Part 1 provides for amendments to certain submission deadlines under the Customs Act.

 

The proposed amendments introduce more stringent and rigorous enforcement of deadlines for submissions to the Anti-Dumping Commission ( the Commission ). The amendments made by Part 1 change the period in which the interested parties are invited to lodge submissions in relation to notices published by the Anti-Dumping Commissioner ( the Commissioner ) .  The parties will be required to lodge a submission within 37 days, rather than 40 days with the Commissioner.

 

The Commissioner will be required to have regard to these submissions lodged within 37 days (as opposed to 40 days).

 

These amendments will better align Australia’s domestic legislation with Article 6.1.1 of the World Trade Organization Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (WTO Agreement) and the Article 12.1.1 of the World Trade Organization Agreement on Subsidies and Countervailing Measures (ASCM).

 

Item 1: Paragraph 269TC(4)(c)

Item 2: Subparagraph 269TD(2)(a)(ii)

Item 3: Subparagraph 269TDAA(2)(a)(ii)

Item 4: Paragraph 269ZC(7)(d)

Item 5: paragraph 269ZCB(1)(a)

Item 6: Subparagraph 269ZD(2)(a)(ii)

Item 7: Paragraph 269ZDBE(6)(e)

Item 8: Subparagraph 269ZBDF(2)(a)(ii)

Item 9: Subparagraph 269ZDBG(2)(aa)(ii)

Item 10: Paragraph 269HD(5)(d)

Item 11: Subparagraph 269ZHE(2)(a)(ii)

Items 1 through to an including Item 11 replace references to “40 days” with “37 days” in the specified sections. The objective is to reduce the time parties have to lodge submissions with the Commissioner from 40 days to 37 days since this is the minimum time allowed under World Trade Organization rules to respond to investigators. It would allow information to be considered earlier by the Commissioner and will enable preliminary determinations to be made in a shorter timeframe.

 

Item 12: Application provisions

Item 12 provides that amendments made by items apply on or after commencement of those items as follows:

·          items 1, 2 and 3 apply in relation to an application made under subsection 269TB(1) or (2) of the Customs Act;

·          items 4 and 6 apply in relation to applications under subsection 269ZA(1) and requests under subsection 269ZC(5) of the Customs Act;

·          item 5 applies in relation to notices published under subsection 269ZC(4), (5) or (6) of the Customs Act;

·          items 7, 8 and 9 apply in relation to applications made under subsection 269ZDBC(1) and requests made under subsection 269ZDBC(2) of the Customs Act; and

·          items 10 and 11 apply in relation to applications made under section 269ZHB of the Customs Act.

 

 



Part 2— Lodgement and publication requirements

Customs Act 1901

 

Item 13: Subdivision F of Division 1A of Part XVB (heading)

Item 13 repeals the heading “Subdivision F - Approval forms” and replaces it with “Subdivision F - Form and manner of applications”. This amendment is so that the heading better indicates the contents of the division.

 

Item 14: Section 269SMS (heading)

Item 14 repeals the heading “269SMS Approval of forms” and replaces it with “269SMS Form and manner of applications”. This amendment is so that the heading better indicates the contents of the section.

 

Item 15: Section 269SMS

Item 15 inserts “(1)” before the “The” in section 269SMS. This is a consequential amendment that provides for the insertion of further subparagraphs into section 269SMS.

 

Item 16: At the end of section 269SMS

Item 16 inserts two additional subparagraphs into section 269SMS. Inserted subparagraph (2) provides that the Commissioner may, by writing, approve the method of lodging an application under a provision in Part XVB of the Customs Act 1901 . Inserted subparagraph (3) provides that the Commissioner may, by writing, approve the method of withdrawing an application for action under the Customs Tariff (Anti-Dumping) Act 1975.

 

Item 17: Subsection 269TAF(4) and (7)

Item 17 replaces reference to “in the Gazette ” with “on the Anti-Dumping Commission’s website” in subsections 269TAF(4) and (7). This is to make notices published by the Minister more accessible to public.

 

Item 18: paragraph 269TA(3)(a)

Item 18 removes the “written” from paragraph 269TA(3)(a). The objective is to allow the Minister to direct the Commissioner without having to provide written directions.

 

Item 19: Paragraphs 296TA(3)(a) and (b)

Item 19 replaces reference to “in the Gazette ” with “on the Anti-Dumping Commission’s website” in subsections 269TA(3)(a) and (b). This is to make notices published by the Minister more accessible to public.

 

Item 20: Subsections 269TB(1), (2) and (3)

Item 20 removes “in accordance with subsection (5)” from subsections 269TB(1), (2) and (3). This is a consequential amendment to allow for the new subsection 269TB(5), provided in Item 22.

 

Item 21 At the end of subsection 269TB(4)

Item 21 inserts an additional requirement that an application under subsection 269TB must comply with. This requirement is that the application must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS. Items 21, 24, 25, 30, 35, 40 and 41 are similar amendments relating to lodgement in a manner approved under section 269SMS.

 

Item 22: Subsection 269TB(5)

Item 22 replaces subsection 269TB(5) with a provision that deems an application or notice to have been received by the Commissioner when the application or notice is first received by a Commission staff member doing duty in relation to dumping applications. This provision maintains the requirement for the date of receipt of application or notice is first received by a Commission staff member doing duty in relation to dumping applications while supporting the standardisation of the lodgement provisions.

 

Item 23: Paragraphs 269TC(2A)(a) and (b)

Item 23 replaces paragraphs 269TC(2A)(a) and (b) with:

(a)     the information must be lodged with the Commissioner, in writing, in the manner in which applications under that section must be lodged; and

(b)    the information is taken to have been received by the Commissioner when the information is first received by a Commission staff member doing duty in relation the dumping applications.

 

Item 24: Subsection 269W(2)

Item 24 replaces subsection 269W(2) with:

(2) An application must be lodged with the Commissioner in the manner approved under section 269SMS

(2A) The application is taken to have been lodged when the application is first received by a Commission staff member doing duty in relation to final duty assessment applications.

This item provides consistency with the new approach to lodgement provisions.

 

Item 25 At the end of subsection 269ZB(1)

Item 25 inserts an additional requirement that an application under subsection 269ZA(1) must comply with. This requirement is that the application must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS.

 

Item 26: Subsection 269ZB(3)

Item 26 replaces subsection 269ZB(3). New subsection 269ZB(3) simplifies the lodgement of an application for review of anti-dumping measures, so that an application is deemed to have been lodged when it is first received by a member of the Commission’s staff undertaking a role in relation to applications for review of anti-dumping measures.

 

Item 27: Paragraph 269ZC(4)(a)

Item 28: Subsection 269ZC(5)

Item 29: Subsection 269ZC(6)

Items 27 through to and including Item 29 replace references to “in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 30: At the end of subsection 269ZCB(1)

Item 30 inserts an additional requirement that an application under subsection 269ZCA must comply with. This requirement is that the application must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS.

 

Item 31: Subsection 269ZCB(3)

Item 31 replaces subsection 269ZCB(3). New subsection 269ZCB(3) simplifies the lodgement of an application for review of anti-dumping measures, so that an application is deemed to have been lodged when it is first received by a member of the Commission’s staff undertaking a role in relation to applications for review of anti-dumping measures.

 

Item 32: Subsection 269ZCC(4)

Item 33: Subsection 269ZCC(7)

Items 32 and 33 replace references to “in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 34: Subsection 269ZDB(7)

Item 34 replaces subsection 269ZDB(7). New subsection requires that if the Minister is to make a declaration in relation to a review of anti-dumping measures, in accordance with subsection 269ZDB(1),  the notice must be published on the Commission’s website. This is to make notices published by the Minister more readily accessible to the public.

 

Item 35: At the end of subsection 269ZDBD(1) (before the note)

Item 35 inserts an additional requirement that an application under subsection 269ZDBC(1)  must comply with. This requirement is that the application must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS.

 

Item 36: Subsections 269ZDBD(3) and (4)

Item 36 replaces subsections 269ZDBD(3) and (4) with a single subsection. New subsection 269ZDBD(3) simplifies the lodgement of an application for review of anti-dumping measures, so that an application is deemed to have been lodged when it is first received by a member of the Commission’s staff undertaking a role in relation to applications for the conduct of anti-circumvention inquires .

 

Item 37: Subsection 269ZDBE(4)

Item 38: Subsection 269ZDBE(5)

Items 37 and 38 replace references to “in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 39: Subsection 269ZDBH(9)

Item 39 replaces subsection 269ZDBH(9) , relating to the powers of the Minister in relation to an anti-circumvention inquiry, with the manner of publication for a notice under subsection 269ZDBH(1) must be published on the Commission’s website.

 

Item 40: Subsection 269ZF(1)

Item 40 replaces “in accordance with subsection (2)” with “in the manner approved under section 269SMS”. This requirement is that an application for accelerated review must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS.

 

Item 41: Subsection 269ZF(2)

Item 41 replaces subsection 269ZF(2). New subsection 269ZF(2) simplifies the lodgement of an applications in relation to applications for accelerated review , so that an application is deemed to have been lodged when it is first received by a member of the Commission’s staff undertaking a role in relation to applications for accelerated review .

 

Item 42: Subsection 269ZG(3)

Items 42 replaces reference to “in the Gazette ” with “on the Anti-Dumping Commissioner’s website” in subsections 269ZG(3). This is to make notices published by the Minister more accessible to the public.

 

Item 43: Subsection 269ZHB(1)

Item 43 replace references to “in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 44: At the end of subsection 269ZHC(1)

Item 44 inserts an additional requirement that an application under subsection 269ZHC(1)  must comply with. This requirement is that the application must be lodged in the manner approved by the Commissioner, as outlined in section 269SMS.

 

Item 45: Subsection 269ZHC(2)

Item 45 replaces subsection 269ZHC(2). New subsection 269ZHC(2) simplifies the lodgement of an application for continuation of anti-dumping measures, so that an application is deemed to have been lodged when it is first received by a member of the Commission’s staff fulfilling a role in relation to applications for continuation of anti-dumping measures.

 

Item 46: Subsection 269ZHD(4)

Item 46 replaces references to “in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 47: Paragraph 269ZHG(2)(b)

Items 47 replaces paragraph 269ZHG(2)(b). New paragraph 269ZHG(2)(b) adds a requirement that notices in relation to the continuation of anti-dumping measures be published on the Commission’s website.  This is to make notices published by the Minister more accessible to the public.

 

Item 48: Subsection 269ZI(1)

Item 48 replaces subsection 269ZI(1). New subsection 269ZI(1) requires that where it is not specified how a public notice of a decision or determination is to be given, it is to be published on the Commission’s website.

 

Item 49: Subsection 269ZI(2) and (9)

Item 49 removes the words, “in a particular publication” from subsections 269ZI(2) and (9). This is to avoid confusion as notices will be published on the Commission’s website.

 

Item 50: Paragraphs 269ZZD(a) and (c)

Item 50 replaces “in a newspaper’ with “on the Anti-Dumping Commission’s website”. This is to make notices published by the Minister more accessible to the public.

 

Item 51: Subsection 269ZZI(1)

Item 51 replaces references to “publish a notice in a newspaper circulating in each State, in Australian Capital Territory and in the Northern Territory”, with “publish a notice on the Review Panel’s website” in subsection 269ZZI(1). This is to make notices published by the Review Panel more readily accessible to the public.

 

Item 52: Subsection 269ZZM(1B)

Item 52 replaces reference to a “public notice of the longer period” and replaces it with “notice of the longer period on the Review Panel’s website”. This is to make notices published by the Review Panel more readily accessible to the public.

 

Item 53: Subsection 269ZZM(4)

Item 53 replaces reference to “public notice of his or her decision” and replaces it with “notice of his or her decision on the Review Panel’s website”. This is to make notices published by the Minister more readily accessible to the public.

 

Item 54: Subsection 269ZZT(6)

Item 54 replaces references to “publish its decision under this section in a newspaper circulating in each State, the Australian Capital Territory and the Northern Territory”  with “publish its decision under this section on its website”. This is to make notices published by the Review Panel more readily accessible to the public.

 

Item 55 Application provisions

Item 55 provides that amendments made by items apply on or after commencement of those items as follows:

·          item 17 applies in relation to a notice published under subsection 269TAF(4) or (7) of the Customs Act;

·          items 18 and 19 apply in relation to directions given under subsection 269TA(1) of the Customs Act;

·          items 20, 21 and 22 apply in relation to applications lodged under subsection 269TB(1) or (2) and notices lodged under subsection 269TB(3) of the Customs Act;

·          item 23 applies in relation to information given under subsection 269TC(2A) of the Customs Act;

·          item 24 applies in relation to applications lodged under subsection 269V(1) of the Customs Act;

·          items 25, 26, 27 and 29 apply in relation to applications lodged under subsection 269ZA(1) of the Customs Act;

·          item 28 applies in relation to requests made under subsection 269ZC(5) of the Customs Act;

·          items 30, 31 and 32 apply in relation to applications made under section 269ZCA of the Customs Act;

·          item 33 applies in relation to requests made under section 269ZCC of the Customs Act;

·          item 34 applies in relation to reports given to the Minister under section 269ZDA of the Customs Act;

·          items 35, 36 and 37 apply in relation to applications lodged under subsection 269ZDBC(1) of the Customs Act;

·          item 38 applies in relation to requests made under subsection 269ZDBC(2) of the Customs Act;

·          item 39 applies in relation to relation to reports given to the Minister under section 269ZDBG of the Customs Act;

·          items 40 and 41 apply in relation to applications lodged under subsection 269ZE(1) of the Customs Act;

·          item 42 applies in relation to relation to reports given to the Minister under subsection 269ZG(1)  of the Customs Act;

·          item 43 applies in relation to a notice published under subsection 269ZHB(1) of the Customs Act;

·          items 44, 45 and 46 apply in relation to applications made under section 269ZHB of the Customs Act;

·          item 47 applies in relation to relation to reports given to the Minister under section 269ZHF of the Customs Act;

·          items 48 and 49 apply in relation to any public notices as described in section 269ZZI of the Customs Act;

·          item 50 applies in relation to a notice published under subsections 269ZZDA(a) to (c) of the Customs Act;

·          item 51 applies in relation to a notice published under subsection 269ZZI(1) of the Customs Act;

·          item 52 applies in relation to longer periods determined by the Minister under section 269ZZM(1A) of the Customs Act;

·          item 53 applies in relation to decisions of the  Minister under subsection 269ZZM(1) of the Customs Act; and

·          item 54 applies in relation to notices published under subsection 269ZZT(6) of the Customs Act.

 

Item 56: Transitional Provisions -approved forms

Item 56  provides that a form approved under section 269SMS of the Customs Act before commencement of item 56 will continue to have effect as if were a form approved under subsection 269SMS(1) of the Customs Act after commencement.



 

Part 3—Length of investigation period

Customs Act 1901

 

Item 57: After subsection 269TC(5)

Item 57 inserts a new subsection (5A) into section 269TC. New subsection 269TC(5A) intends that the Commissioner cannot vary the length of the time for the investigation period once the investigation period has been specified by the Commissioner in a notice under subsection 269TC(4).

 

Item 58: Application provision

Item 58 provides that amendments made by this item apply in relation to a notice given under subsection 269TC(4) of the Customs Act on or following the commencement of item 58. This provision is to provide certainty to applicants as to the application of amendments made in Part 3.



 

Part 4—Cumulative assessment of injury or hindrance

Customs Act 1901

The Part 4 amendments provide for, in certain circumstances, the cumulative assessment of injury to Australian industry when considering the termination of an investigation because of negligible injury. The cumulative assessment of injury means to consider the cumulative injurious effect of exportations of goods to Australia from two (2) or more countries of export that are subject to the investigation.

 

Item 59: Subsection 269TDA(13)

Item 59 replaces “if” with “Subject to subsection (13A), if” in subsection 269TDA(13). This amendment is a consequence of the amendment in item 60.

 

Item 60: Subsection 269TDA(13)

Item 60 inserts a new subsection 269TDA(13A). The new subsection provides that the Commissioner may, in accordance with subsection 269TDA(14B), conduct a cumulative assessment of injury in a dumping investigation.

 

Paragraph 269TDA(13A)(a) provides that, having performed a cumulative assessment of injury in relation to a number of countries, if the Commissioner is not satisfied that the injury, or the hindrance to the establishment of the Australian industry that is caused, or that may be caused, by the export from those countries is negligible, then section 269TDA(13) does not apply in relation to those countries. That is, an investigation should continue and not be terminated if the Commissioner is not satisfied that the cumulative effect of the specified exportations is negligible.

 

Paragraph 269TDA(13A)(b) provides that, having performed a cumulative assessment of injury in relation to a number of countries, if the Commissioner is satisfied that the injury to, or the hindrance to the establishment of the Australian industry that is caused, or that may be caused, by the export from those countries is negligible, then the Commissioner must terminate the investigation in relation to those countries. That is, an investigation is to be terminated if the cumulative effect of the specified exportations causes negligible injury. 

 

Item 60 also includes a note that if the investigation also covers exports of goods from a country that was not part of the ‘cumulation’ consideration because those exports did not satisfy the criteria in subsection 269TDA(14B), then the Commissioner will consider whether subsection 269TDA(13) applies to that country.

 

Item 61: Subsection 269TDA(14)

Item 61 replaces “if” with “Subject to subsection (14A), if” in subsection 269TDA(14). This amendment is a consequence of the amendment in item 62.

 

Item 62: After subsection 269TDA(14)

Item 62 inserts a new subsection 269TDA(14A). This item is consistent with the amendments at item 60, but applies to the conduct of a cumulative assessment of injury in relation to countervailing investigations.

 

Paragraph 269TDA(14A)(a) provides that, having performed a cumulative assessment of injury in relation to a number of countries, if the Commissioner is not satisfied that the injury to, or the hindrance to the establishment of the Australian industry that is caused, or that may be caused, by the export from those countries is negligible, then section 269TDA(14) does not apply in relation to those countries. That is, an investigation should continue and not be terminated if the Commissioner is not satisfied that the cumulative effect of the specified countervailable subsidy exportations is negligible.

 

Paragraph 269TDA(14A)(b) provides that, having performed a cumulative assessment of injury in relation to a number of countries, if the Commissioner is satisfied that the injury to , or the hindrance to the establishment of the Australian industry that is caused, or that may be caused, by the export from those countries is negligible, then the Commissioner must terminate the investigation in relation to those countries. That is, an investigation is to be terminated if the cumulative effect of the specified countervailable subsidy exportations causes negligible injury. 

 

A note is also included in Item 62 that if the investigation also covers exports of goods from a country that was not part of the ‘cumulation’ consideration because those exports did not satisfy the criteria in subsection (14B), then the Commissioner will consider whether subsection (14) applies to that country.

 

Item 62 inserts a new subsection 269TDA(14B). This subsection sets out what circumstances the Commissioner must be satisfied of in order to conduct a cumulative assessment of injury for the purpose of section 269TDA(13A) or (14A). These conditions mirror those set out in section 269TAE(2C) that govern the way in which the Minister may consider if material injury has been caused to the Australian industry when deciding whether or not to impose dumping and / or countervailing duties . 

 

Item 63: Paragraph 269ZZN(b)

Item 64: Section 269ZZO (cell at table item 3, column headed “Reviewable decision”)

Items 63 and 64 replace reference to “(13) and (14)” with “(13), (13A), (14) or (14A)”. This amendment is a consequence of the amendments made in items 61 and 62.

 

Item 65: Section 269ZZO (cell at table item 3, column headed “Applicant”)

Item 65 replaces the text in the cell at table item 3, column headed “Applicant” with “the person who made the application for the dumping duty notice or countervailing duty notice”. This amendment is a consequence of the amendments made in items 61 and 62 and is intended to be a simplified description of the applicant.

 

Item 66 Application provision

Item 66 provides that amendments made by Item 59 to 62 apply in relation to application for a dumping duty notice or a countervailing duty notice that are made on or following the commencement of Part 4. This provision is to provide certainty to applicants as to the application of amendments made in Part 4.



 

Part 5—Normal value of goods

Customs Act 1901

 

Item 67: After subsection 269TAC(3)

Item 67 inserts a new subsection 3A that provides that the Minister when determining normal value is not required to undertake the task at paragraph 2(d) before the task at paragraph 2(c).

 

This amendment will make it clear that there is no hierarchy for the methods available to determine a normal value.

 

Item 68: Application provision

Item 68 provides that amendments made by Part 5 apply to investigations that are initiated or reviews or inquiries that begin, on or following the commencement of Part 5. This provision is to provide certainty to applicants as to the application of amendments made in Part 5 and will ensure Australia’s legislation is better aligned to the WTO Anti-Dumping Agreement.

 

 



 

Part 6—Dumping periods

Customs Act 1901

 

Item 69 Paragraph 269TACB(2A)(a)

Item 69 replaces “2 months” with “1 month”. The objective of this amendment is to reduce the minimum time that each part of an investigation must take to complete the method of comparisons referred to in paragraphs 269TACB(2)(aa) and (c). This amendment is intended to enable a more flexible approach when working out whether or not dumping has occurred and the level of dumping, where a comparison of part of an investigation period is considered appropriate.

 

Item 70 Application provision

Item 70 provides that amendment made by Part 6 apply to applications for a dumping duty notice that are made on or following the commencement of Part 6. This provision is to provide certainty to applicants as to the application of amendments made in Part 6.

 

 

 



 

Part 7—Definition of subsidy

Customs Act 1901

 

Item 71: Subsection 269TACC(2)

Item 71 replaces subsection 269TACC(2). New subsection 269TACC(2) sets out a test for determining if a financial contribution has conferred a benefit. It guides the Minister’s consideration, set out in subsection 269TACC(1), of whether a financial contribution or income or price support confers a benefit. A financial contribution is taken to confer a benefit if it is provided on terms that are more advantageous than those that would have been available to the recipient on the market. The test in subsection 269TACC(2) is to prevail over the test in subsection 269TACC(3) to the extent of any inconsistency.

 

Item 72: Paragraphs 269TACC(3)(a) to (e)

Item 72 amends each paragraph from 269TACC(3)(a) through to (e) so that the words “referred to in subsection (2)” are removed. The references to a government or body in paragraphs 269TACC(3)(a) through to (e) continue to refer to a government or body listed in the definition of subsidy in section 269T(1), namely:

·          a government of the country of export or country of origin of the goods;

·          a public body of that country or a public body of which that government is a member; and

·          a private body entrusted or directed by that government or public body to carry out a governmental function.

This amendment is as a consequence of the amendment at item 71.

 

 

Item 73: Application Provision

Item 73 provides that amendment made by Part 7 applies to investigations that are initiated or to reviews or inquiries that begin, on or after the commencement of Part 7. This provision is to provide certainty to the public regarding investigation as to the application of amendments made in Part 7.

 



 

Part 8—Accelerated review

Customs Act 1901

 

Item 74: Subsection 269T(1) (definition of new exporter )

Item 74 replaces the definition of new exporter in subsection 269T(1). The new definition provides that a new exporter is an exporter who did not export goods, which are the subject of an application for a dumping duty notice or a countervailing duty notice or like goods, at any time during the investigation period in relation to the application. This amendment will ensure Australia’s legislation is better aligned to the WTO Anti-Dumping Agreement.

 

Item 75: Subsection 269ZE(1)

Item 75 replaces reference to “subparagraph 269ZG(3)(b)(ii)” with “paragraph 269ZG(3)(b)”. This amendment is a cross referencing amendment, as a consequence of the amendment in Item 77.

 

Item 76: Paragraph 269ZG(1)(b)

Item 76 replaces paragraph 269ZG(1)(b). The new paragraph allows the Commissioner to recommend to the Minister that a dumping duty notice or countervailing duty notice, the subject of an application, be altered so as to apply to the applicant as if different variable factors had been fixed. This amendment removes the Commissioner’s ability to recommend that a dumping duty notice or countervailing duty notice not apply to the applicant.

 

Item 77: Paragraph 269ZG(3)(b)

Item 77 replaces paragraph 269ZG(3)(b). The new paragraph allows the Minister to declare, with effect from the date the application is lodged, that the dumping duty notice or countervailing duty notice had applied to the applicant but the Minister had fixed specified different variable factors relevant to the determination of duty payable by the applicant. This amendment removes the Minister’s ability to declare that a dumping duty notice or countervailing duty notice not apply to the applicant.

 

Item 78 Paragraph 269ZH(a)

Item 78 replaces the words, “from the applicant in respect of consignments of goods” with the words, “in respect of consignments of goods to which the application relates” in paragraph 269ZH(a). This amendment clarifies that if an application for the specified accelerated review has been lodged then interim dumping and countervailing duty cannot be collected in respect of consignments of goods to which such applications relate.

 

Item 79 Application provision

Item 79 provides that amendment made to subsection 269ZE(1) of the Customs Act on or after the commencement of Part 8. This provision is to provide certainty to the public to the application of amendments made in Part 8.

 



 

Part 9—Period during which notices remain in force

Customs Act 1901

 

The items amending Part 9 ensure that, in alignment with the WTO agreements, anti-dumping measures expire after five years from the date the original imposition of a measure takes effect, irrespective of whether the form of that measure has changed during that five year period. Article 11.3 of the Anti-Dumping Agreement and Article 21.3 of the ASCM provide for a measure to be terminated five years after imposition unless they have been subjected to an appropriate review and finding. In Australia this is called a continuation inquiry and takes place in the lead up to the five year expiry date.

 

Anti-dumping measures can be in the form of a dumping duty notice, a countervailing duty notice or an undertaking. The Minister may review, and change, the form of measures applying in a particular circumstance, either changing the measure from one involving an undertaking being provided by an exporter to one being imposed under a dumping and/or countervailing duty notice (or vice versa).

 

Subsection 269TM(2) provides that an undertaking expires five (5) years after it is entered into. Where the Minister has changed the form of measure before a continuation inquiry this would result in the undertaking going longer than the five years (from the original imposition of measures) provided for under the WTO agreements.

 

Item 80: Subsection 269TM(1)

Item 80 replaces “where” with “Subject to subsection (1A), where” in subsection 269TM(1). This amendment is a consequence of the amendment in item 81.

 

Item 81: After subsection 269TM(1)

Item 81 provides that if:

 

(a)     the original notice is published under a relevant notification provision in respect of goods of a particular kind; and

(b)    in relation to the investigation that resulted in the publication of the original notice, the Minister accepted an undertaking under subsection 269TEB(5) or (6) that was proposed by a government of a country of export, or by an exporter, of goods of that kind; and

(c)     before the end of the period of 5 years beginning on the start day that the Minister accepted that undertaking:

                                i.             that government or exporter breaches that undertaking; and

                              ii.             the Minister, under subsection 269TEB(7), takes steps to facilitate the resumption of the investigation in so far as it relates to goods of that kind exported from that country or exported by that exporter; and

                            iii.             another notice is published under a relevant notification provision in respect of goods of that kind exporter from that country or exported by that exporter;

 

then the other notice expired 5 years after the start day unless it is revoked before the end of that  period.

 

The effect of this amendment is to ensure that if an undertaking is converted to a notice (for example, a dumping duty notice) prior to the expiry of the undertaking, the new notice as it relates to that country or exporter expires five years after the start day. This will prevent a country or exporter from being subjected to measures (for example, in the form of an undertaking and dumping duty notice) from persisting for longer than five years without being subject to a continuation inquiry.

 

Item 82 Application provision

Item 82 provides that paragraph 269TM(1A)(b), as inserted by item 81, applies in relation to an undertaking that is accepted on or after the commencement of item 82. This provision is to provide certainty to the public as to the application of amendments made in Part 9.

 



 

Part 10—Dumping findings

Customs Act 1901

 

Subsection 269T(2AE) provides that when undertaking an injury analysis that the Minister may examine periods before the investigation period for the purposes of determining material injury. This power was intended to allow for the Minister to compare the injury occurring in the period before the investigation period with the injury occurring in the investigation period.

 

This was not meant to allow for injury taking place before the investigation period to be causatively linked with dumping taking place in the investigation period or provide for a conclusion that that prior injury was caused by dumping.

 

Articles 3.1 of the Anti-Dumping Agreement and Article 15.1 of the ASCM require that injury be based on positive evidence and an objective examination of the volume of dumped/subsidised goods and the consequent impact on domestic markets. This is referred to as the causative link between dumping/subsidisation and injury, and is a necessary finding before measures can be imposed. 

 

The WTO agreements further require that dumping or subsidisation must be determined in relation to goods exported during the investigation.  This is reflected in section 269TACB which requires that dumping and the level of dumping is determined based on goods exported during the investigation period. 

 

As dumping is not determined for exports prior to the investigation period no causative link could be found and no finding necessary to impose measures could be made. As the current wording of subsection 269T(2AD) could be read to allow for material injury to be examined that is not causatively linked to dumping, it is necessary to clarify that such injury cannot be attributed to dumping.

 

Item 83: After subsection 269T(2AD)

Item 83 inserts an additional subsection 269T(2AE) to clarify that subsection 269T(2AD) does not permit any determination that dumping has occurred by reference to goods exported to Australia before the start of the investigation period. The item also includes a note that section 269TACB requires a determination of whether dumping has occurred by reference to goods exported to Australia during the investigation period.

 

The amendment clarifies that a finding of dumping cannot be made in relation to goods exported prior to the investigation period.

 

Item 84: Application provision

Item 84 provides that amendments made by Part 10 apply in relation to investigations that are initiated, or to reviews or inquires that begin on or following the commencement of Item 84. This provision is to provide certainty to the public as to the application of amendments made in Part 10.



 

 

Part 11—Notification of subsidies

Customs Act 1901

Amendments to the Customs Act and the Dumping Duty Act passed in 2013 removed the Minister’s mandatory consideration of the lesser duty rule in certain cases. One of the specified cases is when, in relation to a countervailing investigation, the country involved is determined by the Minister to have not submitted its WTO subsidy notification during a determined compliance period. The amendments in Part 11 clarify the legislation in relation to this circumstance.

 

Part 11 amends the Customs Act to provide that the Minister is not required to have regard to the lesser duty rule when considering the imposition of countervailing duties if the relevant country of export has not submitted notification of its subsidies at least once in the compliance period.

 

Notification of subsidies refers to paragraph 1 of Article 25 of the ASCM which provides for WTO Members to submit annual notifications of subsidies. In current practice, the WTO Committee on Subsidies and Countervailing Measures (the body to be notified) allows for notification to be made every two years.

 

The compliance period is defined by legislative instrument made for the purpose under subsection 269T(1A). Currently, it is defined to be the two most recent biennial periods, ending prior to the date of initiation of a countervailing investigation.

 

In order for the Minister to not have mandatory regard to the consideration of applying a lesser duty, in this case, the Minister must be satisfied that the government of the country of export has not submitted notification of its subsidies at least once in the compliance period.

 

That is, if a country has submitted one notification in the two most recent biennial periods for which subsidy notifications were due and prior to the initiation of the investigation then the Minister must have regard to applying a lesser amount of duty.  If no notification was made during that period, then the Minister is not required to consider applying a lesser amount of duty.

 

Item 85 Paragraph 269TJ(3BA)(a)

Item 85 replaces subsection 269TJ(3BA)(a) with a provision that provides: “The government of the country of export has not submitted notification of its subsidies, as mentioned in paragraph 1 of Article 25 of the Agreement on Subsidies and Countervailing Measures, at least once in the compliance period.” The compliance period means a period prescribed in, or worked out in accordance with, an instrument under subsection 269T(1A) of the Customs Act.

This amendment means that the Minister does not need to consider the lesser duty rule as it relates to any proposed undertaking if the Minister is satisfied that either or both of 269TJ(3BA)(a) or (b) apply in relation to the goods in the consignment.

 

 

Item 86 Application provision

Item 86 provides that amendments made by Part 11 apply in relation to any assessments undertaken on or following the commencement of item 85. This provision is to provide certainty to the public as to the application of amendments made in Part 11.

 



 

Part 12—Fee for review by Review Panel 

Customs Act 1901

 

Division 9 of the Customs Act is being amended to introduce a fee to apply for a review by the Review Panel, which will be prescribed by legislative instrument.  The fee will ensure that businesses seriously consider the merits of their appeal before applying and help to offset the costs of administering the merits review function. 

 

Item 87 At the end of subsection 269ZZE(1)

Item 87 inserts an additional requirement that an application under subsection 269ZZE must comply with. This requirement is that the application must be accompanied by the fee prescribed in an instrument under subsection 269ZZE(3) as outlined in item 88.

 

Item 88 At the end of section 269ZZE

Item 88 inserts subsections 269ZZE(3), (4) and (5) under the heading, Fee as follows:

“(3) The Minister may, by legislative instrument prescribe a fee for the purposes of paragraph (1)(f).

(4) The instrument may prescribe different fees for different kinds of applications or different kinds of applicants.

(5) The instrument may make provision for, and in relation to, the refund or waiver of any fee.”

 

The intended effect of (4) of item 88 is that, by legislative instrument, a small and medium sized business will be eligible for a reduced fee.  The clause also enables a possible future policy setting where by legislative instrument, different fees could be applied to different types of applications if required.

 

The intended effect of (5) of item 88 is that a legislative instrument will prescribe a partial refund for the full withdrawal of an application for merits review before a review is commenced. Specifically, full withdrawal of an application could be an outcome of a conference set out in subsection 269ZZH as outlined in item 98.

 

Item 89 At the end of subsection 269ZZQ(1)(before the note)

Item 89 inserts an additional requirement that an application under subsection 269ZZQ must comply with. This requirement is that the application must be accompanied by the fee prescribed in an instrument under subsection 269ZZQ(3) as outlined in item 90.

 

Item 90 At the end of section 269ZZQ

Item 90 inserts subsections 269ZZQ(2), (3) and (4) under the heading, Fee as follows:

“(2) The Minister may, by legislative instrument prescribe a fee for the purposes of paragraph (1)(f).

(3) The instrument may prescribe different fees for different kinds of applications or different kinds of applicants.

(4) The instrument may make provision for, and in relation to, the refund or waiver of any fee.”

 

The intended effect of (4) of item 88 is that, by legislative instrument, a small and medium sized business will be eligible for a reduced fee.  The clause also enables a possible future policy setting where by legislative instrument, different fees could be applied to different types of applications if required. 

 

The intended effect of (5) of item 88 is that a legislative instrument will prescribe a partial refund for the full withdrawal of an application for merits review before that application is accepted by the Review Panel. Specifically, full withdrawal of an application could be an outcome of a conference set out in subsection 269ZZRA as outlined in item 109.

 

Item 91 Application provision

Item 91 provides that amendments made by Part 12 apply in relation to any application made with respect to any reviewable decision made on or following the commencement of Part 12. This provision is to provide certainty to the public as to the application of amendments made in Part 12.  The intent of this clause is that potential applicants for merits review will have the full 30 days available under 269ZZD for a Minister’s decision and 269ZZP for a Commissioner’s decision to consider whether to lodge an application knowing that it has to be accompanied by the fee detailed in Part 12 and prescribed by legislative instrument. 

 



 

Part 13—Conduct of review by Review Panel 

Customs Act 1901

 

Division 9 of the Customs Act is being amended to improve merits review of anti-dumping decisions.  This includes introducing a conferencing mechanism, allowing the Commissioner to make submissions to the Review Panel during a review, and enabling members of the Review Panel to access the expertise of the Commission in a transparent manner to assist in the review.  In addition, the procedural and legal threshold for review will be raised. 

 

Item 92 Section 269Y

Item 92 replaces “Commissioner” with “Senior Member of the Review Panel” as the person who is to approve of forms for the purposes of section 269Y of the Customs Act.

 

Item 93 Paragraph 269ZZE(2)(b)

Item 93 replaces paragraph 269ZZE(2)(b) with the following additional requirements for applications for review:

“(b) contain a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision; and

(c) contain a statement setting out the decision (the proposed decision) that the applicant considers the Minister should have made; and

(d) contain a statement setting out how the grounds mentioned in paragraph (b) support the making of the proposed decision; and

(e) for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—contain a statement setting out how the proposed decision is materially different from the reviewable decision.”

 

The intent of item 93 is to require the applicant to carefully consider the grounds they put forward, having to ensure that the grounds support the making of the applicants proposed decision and how that proposed decision is materially different from the reviewable decision. 

 

Item 94 Section 269ZZG (heading)

Item 94 replaces the heading at section 269ZZG with the heading: “Rejection of application—failure to establish decision not the correct or preferable decision etc.”

 

Item 95 Subsections 269ZZG(1) and (2)

Item 95 replaces subsections 269ZZG(1) and (2) with the following:

“(1) If one or more of the following apply:

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

(b)  the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZE(2)(b) support the making of the proposed decision;

(c)  for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—the Review Panel is not satisfied that the proposed decision is materially different from the reviewable decision;

the Review Panel may, by notice given to the applicant, request the applicant to give the Review Panel, within the period specified in the notice, further information in relation to those matters.

(2) The Review Panel may reject an application if at any time after the end of the 30 day period referred to in section 269ZZD:

(a)  the Review Panel is not satisfied that the applicant has given the Review Panel information setting out reasonable grounds for the reviewable decision not being the correct or preferable decision; or

(b)  the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZE(2)(b) support the making of the proposed decision; or

(c)  for a decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d)—the Review Panel is not satisfied that the proposed decision is materially different from the reviewable decision.”

 

The intent of new subsection 269ZZG(1) is to enable the Review Panel to request further information from the applicant if they are not satisfied that the application contains the information required under item 93.  Subsection (1) (c) also expands the 30 days previously allowed to amend applications to a timeframe decided by the Review Panel, to enable issues identified during an initial conference to be addressed. 

 

The intent of new subsection 269ZZG(2)  is to provide a test for the Review Panel to determine whether an applicant has put forward reasonable grounds for the reviewable decision not being the correct or preferable decision, ensuring that those grounds support the making of the proposed decision, and that the proposed decision is materially different from the reviewable decision (for certain decisions). If the Review Panel is not satisfied that the application has demonstrated all of the above, it may reject the application within 30 days after the Minister’s reviewable decision was made.

 

For the purposes of determining whether the proposed decision is materially different from the reviewable decision, the intention is that the Review Panel should consider whether the differences between the decisions are important, essential and relevant. The particular circumstances of the applicant or of other affected parties (for example, their financial situation and the effect a favourable decision would have on them) should not be primary considerations.

 

Item 96 Subsection 269ZZG(4)

Item 96 replaces the reference to “30-day period referred to in section 269ZZD” with the words, “period specified in a notice under subsection (1)”.  This amendment is as a consequence of the amendment outlined at item 95.

 

Item 97 At the end of section 269ZZG

Item 97 inserts subsection (5) at the end of section 269ZZG as follows:

 

(5) If:

(a) the Review Panel does not, under this Subdivision, reject an application; and

(b) in relation to information given by the applicant setting out the grounds for the reviewable decision not being the correct or preferable decision:

(i) the Review Panel is satisfied that one or more of those grounds (the reviewable grounds ) are reasonable grounds for the reviewable decision not being the correct or preferable decision; and

(ii) the Review Panel is satisfied that one or more of those ground (the non-reviewable grounds ) are not reasonable grounds for the reviewable decision not being the correct or preferable decision;

 

Then:

(c) the Review Panel must accept the reviewable grounds and must conduct the review in relation to those grounds and no other grounds; and

(d) the Review Panel must reject the non-reviewable grounds.

 

The intent of item 97 is to allow the Review Panel to reject individual grounds where the Review Panel does not believe they are reasonable grounds for the reviewable decision not being the correct or preferable decision. This will enable the Review Panel to undertake a review of only the valid grounds and therefore increase the efficiency of reviews. 

 

Item 98 After section 269ZZH

Item 98 inserts section 269ZZHA after section 269ZZH as follows: 

(1) The Review Panel may, at any time after receiving an application for review, hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.

(2) In making a recommendation under subsection 269ZZK(1), the Review Panel may also have regard to:

(a) that further information to the extent that it relates to the relevant information (within the meaning of subsection 269ZZK(6)); and

(b) any conclusions reached at the conference based on the relevant information.

(3) If the Review Panel decides to hold a conference at any time after receiving an application for review and before beginning to conduct the review:

(a) the Review Panel must invite the applicant to attend the conference; and

(b) if the applicant fails to attend the conference and the Review Panel is not satisfied that the applicant has a reasonable excuse for not attending the conference—the Review Panel may reject the application.

 

The intent of item 98 is to allow the Review Panel to call conferences to gather further information  to aid it conducting an efficient and robust review.

 

Subsection (3) makes it mandatory for an applicant to attend a conference if the Review Panel holds one at any time after receiving an application for review and before beginning to conduct the review.  The intent is to ensure that if the Review Panel has any queries on an application, it can resolve them before accepting or rejecting the application and conducting the review.  If the applicant is not contactable on the details that they provided with the application, the fact that they were not informed about the Review Panel’s intention to hold a conference is not a reasonable excuse for not attending.

 

Item 99 Paragraph 269ZZI(2)(b)

Item 99 replaces the reference to “ground for seeking the review”, with “grounds in relation to which the review is to be conducted”.  This amendment is a consequence of the amendment outlined at item 97.  That is, a number of grounds may be non-reviewable grounds and therefore not included in the review.  This is important as parties making submissions to the review will not waste time responding to grounds that are no longer under review.   

 

Item 100 After paragraph 269ZZJ(a)

Item 100 inserts “the Commissioner”.  This change allows the Commissioner to make submissions to the Review Panel in relation to a review.  The intent of item 100 is to allow the Review Panel to access the expertise of the Commission in a transparent manner to assist in the review.

 

Item 101 Subsection 269ZZK(1)

Item 101 replaces the reference to “or 269ZZH” with “269ZZH or 269ZZHA”.  This amendment is as a consequence of the amendment outlined at item 98.

 

Item 102 After subsection 269ZZK(1)

Item 102 inserts the new provisions 269ZZK(1A) which provides, “For a reviewable decision referred to in paragraph 269ZZA(1)(a), (c), (ca) or (d), the Review Panel may make a recommendation referred to in paragraph (1)(b) of this section only if the new decision is materially different from the reviewable decision.” This amendment requires the Review Panel to apply this test before making a recommendation under section 269ZZK(1)(b) to revoke and substitute a specified new decision. If on applying this test the new decision is not materially different from the reviewable decision then the Review Panel must affirm the reviewable decision under section 269ZZK(1)(a).

 

Item 103 Subsection 269ZZK(4)

Item 103 inserts “and subsection 269ZZHA(2)” after the reference to “subsections (4A) and (5)”.  This amendment is as a consequence of the amendment outlined at item 98.

 

Item 104 Subsection 269ZZQ(1A)

Item 104 replaces paragraph 269ZZQ(1A) with the following additional requirements for applications for review:

 

 (a) contain a statement setting out the grounds on which the applicant believes the reviewable decision is not the correct or preferable decision; and

(b) contain a statement setting out the decision (the proposed decision) that the applicant considers the Commissioner should have made; and

(c) contain a statement setting out how the grounds mentioned in paragraph (a) support the making of the proposed decision; and

(d) for a decision referred to in paragraph 269ZZN(c)—contain a statement setting out how the proposed decision is materially different from the reviewable decision.

 

The intent of item 104 is to require the applicant to carefully consider the grounds they put forward, having to ensure that the grounds support the making of the applicants proposed decision and how that proposed decision is materially different from the reviewable decision. 

 

Item 105 Section 269ZZQA (heading)

Item 105 replaces the heading at section 269ZZQA with the heading: “Rejection of application—failure to establish decision not the correct or preferable decision etc.”

 

Item 106 Subsections 269ZZQA(1) and (2)

Item 106 replaces subsections 269ZZQA(1) and (2) with the following:

“(1) If one or more of the following apply:

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

(b) the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZQ(1A)(a) support the making of the proposed decision;

(c) for a decision referred to in paragraph 269ZZN(c)—the Review Panel is not satisfied that the proposed decision is materially different from the reviewable decision;

the Review Panel may, by notice given to the applicant, request the applicant to give the Review Panel, within the period specified in the notice, further information in relation to those matters.

(2) The Review Panel may reject an application if at any time after the end of the 30 day period referred to in section 269ZZP:

(a) the Review Panel is not satisfied that the applicant has given the Review Panel information setting out reasonable grounds for the reviewable decision not being the correct or preferable decision; or

(b) the Review Panel is not satisfied that the grounds mentioned in paragraph 269ZZQ(1A)(a) support the making of the proposed decision; or

(c) for a decision referred to in paragraph 269ZZN(c)—the Review Panel is not satisfied that the proposed decision is materially different from the reviewable decision.”

 

The intent of new subsection 269ZZQA(1) is to enable the Review Panel to request further information from the applicant if they are not satisfied that the application contains the information required under item 104.  Subsection (1) (c) also expands the 30 days previously allowed to amend applications to a timeframe decided by the Review Panel, to enable issues identified during an initial conference to be addressed. 

 

The intent of new subsection 269ZZQA(2) is to provide a test for the Review Panel to determine whether an applicant has put forward reasonable grounds for the reviewable decision not being the correct or preferable decision, ensuring that those grounds support the making of the proposed decision, and that the proposed decision is materially different from the reviewable decision (for a decision referred to in paragraph 269ZZN(c)). If the Review Panel is not satisfied that the application has demonstrated all of the above, it may reject the application within 30 days after the Commissioner’s reviewable decision was made.

 

For the purposes of determining whether the proposed decision is materially different from the reviewable decision, the intention is that the Review Panel should consider whether the differences between the decisions are important, essential and relevant. The particular circumstances of the applicant or of other affected parties (for example, their financial situation and the effect a favourable decision would have on them) should not be primary considerations.

 

Item 107 Subsection 269ZZQA(4)

Item 107 replaces the reference to “30-day period referred to in section 269ZZP” with the words, “period specified in a notice under subsection (1)”.  This amendment is a as consequence of the amendment outlined at item 106.

 

Item 108 At the end of section 269ZZQA

Item 108 inserts subsection (5) at the end of section 269ZZQA as follows:

 

(5) If:

(a) the Review Panel does not, under this Subdivision, reject an application; and

(b) in relation to information given by the applicant setting out the grounds for the reviewable decision not being the correct or preferable decision:

(i) the Review Panel is satisfied that one or more of those grounds (the reviewable grounds ) are reasonable grounds for the reviewable decision not being the correct or preferable decision; and

(ii) the Review Panel is satisfied that one or more of those ground (the non-reviewable grounds ) are not reasonable grounds for the reviewable decision not being the correct or preferable decision;

 

Then:

(c) the Review Panel must accept the reviewable grounds and must conduct the review in relation to those grounds and no other grounds; and

(d) the Review Panel must reject the non-reviewable grounds.

 

Consistent with Item 97, the intent of item 108 is to allow the Review Panel to reject individual grounds where the Review Panel does not believe they are reasonable grounds for the reviewable decision not being the correct or preferable decision

 

Item 109 After section 269ZZR

Item 109 inserts section 269ZZRA, ZZRB and ZZRC after section 269ZZR as follows: 

269ZZRA  Review Panel may hold conferences

 

(1) The Review Panel may, at any time after receiving an application for review, hold a conference of such persons or bodies as it considers appropriate for the purpose of obtaining further information in relation to the application or review.

(2) In making a decision on the review, the Review Panel may also have regard to:

(a) that further information to the extent that it relates to the information that was before the Commissioner when the Commissioner made the reviewable decision; and

 (b) any conclusions reached at the conference based on the information that was before the Commissioner when the Commissioner made the reviewable decision.

(3) If the Review Panel decides to hold a conference at any time after receiving an application for review and before beginning to conduct the review:

(a) the Review Panel must invite the applicant to attend the conference; and

(b) if the applicant fails to attend the conference and the Review Panel is not satisfied that the applicant has a reasonable excuse for not attending the conference—the Review Panel may reject the application.

269ZZRB   Review Panel may seek further information from the Commissioner

 

(1) In reviewing a reviewable decision under this Subdivision, the Review Panel may seek further information from the Commissioner in relation to information that was before the Commissioner when the Commissioner made the reviewable decision.

(2) In making a decision on the review, the Review Panel may also have regard to that further information.

269ZZRC  Notification of review

 

Negative prima facie decisions, negative preliminary decisions and rejection decisions

(1) Before the Review Panel begins to conduct a review of a negative prima facie decision, a negative preliminary decision or a rejection decision, the Review Panel must give a notice to the applicant and the Commissioner indicating that the Review Panel proposes to conduct that review.

(2) A notice under subsection (1) must:

(a) describe the goods to which the application relates; and

(b) set out the decision that is sought to be reviewed and the grounds in relation to which the review is to be conducted.

 

Termination decision

(3) Before the Review Panel begins to conduct a review of a termination decision, the Review Panel must publish a notice on the Review Panel’s website indicating that the Review Panel proposes to conduct that review.

(4) A notice under subsection (3) must:

(a) describe the goods to which the application relates; and

(b) set out the decision that is sought to be reviewed and the grounds in relation to which the review is to be conducted.

 

Consistent with Item 98, the intent of section 269ZZRA is to allow the Review Panel to call conferences to gather further information to aid it conducting an efficient and robust review.

 

Consistent with Item 98, subsection (3) of 269ZZRA makes it mandatory for an applicant to attend a conference if the Review Panel holds one at any time after receiving an application for review and before beginning to conduct the review. The intent is to ensure that if the Review Panel has any queries on an application, it can resolve them before accepting or rejecting the application and conducting the review. If the applicant is not contactable on the details that they provided with the application, the fact that they were not informed about the Review Panel’s intention to hold a conference is not a reasonable excuse for not attending.

 

Section 269ZZRB enables the Review Panel to seek further information from the Commissioner to inform the conduct of the review.  The intent of this clause is to allow the Review Panel to access the expertise of the Commission in a transparent manner to aid it in conducting an efficient and robust review. 

 

The intent of section 269ZZRC is to align the timeframes for the review of Commissioner’s decisions to that of Minister’s decisions.  That is, the Review Panel has 60 days from the time the notice is given (or published for a termination decision) to provide its recommendation to the Minister.  Currently, a review of the Commissioner’s decision must be completed within 60 days after receipt of the application. It also provides greater transparency by alerting the applicant that the application has been accepted and which grounds will be reviewed.

 

Item 110 Subsection 269ZZS(1)

Item 110 amends subsection 269ZZS(1) to include a reference to “or 269ZZRA”. This amendment reflects the ability of the Review Panel under new section 269ZZRA to reject an application if the applicant fails to attend a conference called by the Review Panel prior to beginning to conduct a review.

 

Item 111 Subsection 269ZZS(3)

Item 111 amends subsection 269ZZS(3) to replace “In” with “Subject to subsections 269ZZRA(2) and 269ZZRB(2), in” to reflect that the Review Panel will receive and may have regard to information obtained through a conference held under section 269ZZRA or from the Commission under 269ZZRB.

 

Item 112 Subsection 269ZZS(4)

Item 112 replaces “receipt of the application for the review” with “giving of the notice under subsection 269ZZRC(1) to the applicant” to reflect that reviews of a negative prima facie decision would commence once the Review Panel gives notice to the applicant that the Review Panel proposes to conduct that review under subsection 269ZZRC(1).

Consistent with Item 109, this item aligns the timeframes for the review of Commissioner’s decisions to that of Minister’s decisions.

 

 

Item 113 Subsection 269ZZT(1)

Item 113 amends subsection 269ZZT(1) to reflect that the Review Panel may reject an application under new section 269ZZRA if the applicant fails to attend a conference called by the Review Panel prior to beginning to conduct a review.

 

Item 114 Subsection 269ZZT(4)

Item 114 amends subsection 269ZZT(4) to replace “In” with “Subject to subsections 269ZZRA(2) and 269ZZRB(2), in” to reflect that the Review Panel will receive and may have regard to information obtained through a conference held under section 269ZZRA or from the Commission under 269ZZRB.

 

Item 115 Subsection 269ZZT(5)

Item 115 replaces “receipt of the application for the review” with “publication of the notice under subsection 269ZZRC(3)” to reflect that reviews of termination decisions would commence once the Review Panel gives public notice that the Review Panel proposes to conduct that review under subsection 269ZZRC(3).  Consistent with Item 109, this item aligns the timeframes for the review of Commissioner’s decisions to that of Minister’s decisions.

 

Item 116 Subsection 269ZZU(1)

Item 116 amends subsection 269ZZU(1) to reflect that the Review Panel may reject an application under new section 269ZZRA if the applicant fails to attend a conference called by the Review Panel prior to beginning to conduct a review.

 

Item 117 After subsection 269ZZU(1)

Item 117 inserts a new subsection to reflect that the Review Panel may only revoke and substitution a negative preliminary decision where the Review Panel is satisfied that the new decision would be materially different from the reviewable decision. 

 

For the purposes of determining whether the proposed decision is materially different from the reviewable decision, the intention is that the Review Panel should consider whether the differences between the decisions are important, essential and relevant. The particular circumstances of the applicant or of other affected parties (for example, their financial situation and the effect a favourable decision would have on them) should not be primary considerations.

 

Item 118 Subsection 269ZZU(3)

Item 118  amends subsection 269ZZU(3) to replace “In” with “Subject to subsections 269ZZRA(2) and 269ZZRB(2), in” to reflect that the Review Panel will receive and may have regard to information obtained through a conference held under section 269ZZRA or from the Commission under 269ZZRB.

 

Item 119 Subsection 269ZZU(4)

Item 119 replaces “receipt of the application for the review” with “giving of the notice under subsection 269ZZRC(1) to the applicant” to reflect that reviews of a negative preliminary decision would commence once the Review Panel gives notice to the applicant that the Review Panel proposes to conduct that review under subsection 269ZZRC(1).

Consistent with Item 109, this item aligns the timeframes for the review of Commissioner’s decisions to that of Minister’s decisions.

 

Item 120 Subsection 269ZZUA(1)

Item 120 amends subsection 269ZZUA(1) to reflect that the Review Panel may reject an application under new section 269ZZRA if the applicant fails to attend a conference called by the Review Panel prior to beginning to conduct a review.

 

Item 121 Subsection 269ZZUA(5)

Item 121 amends subsection 269ZZUA(5) to replace “In” with “Subject to subsections 269ZZRA(2) and 269ZZRB(2), in” to reflect that the Review Panel will receive and may have regard to information obtained through a conference held under section 269ZZRA or from the Commission under 269ZZRB.

 

Item 122 Subsection 269ZZUA(6)

Item 122 replaces “receipt of the application for the review” with “giving of the notice under subsection 269ZZRC(1) to the applicant” to reflect that reviews of a rejection decision would commence once the Review Panel gives notice to the applicant that the Review Panel proposes to conduct that review under subsection 269ZZRC(1).  Consistent with Item 109, this item aligns the timeframes for the review of Commissioner’s decisions to that of Minister’s decisions.

 

Item 123 At the end of paragraph 269ZZX(1)(a)

Item 123 adds “a summary of further information obtained at a conference mentioned in section 269ZZHA or 269ZZRA” as information that the Review Panel must maintain on a public record. The amendment will require that non-confidential summaries of further information obtained at conferences held in relation to applications for reviews of Ministerial decisions under Subdivision B and application for reviews of termination decisions by the Commissioner under Subdivision C are included on the public record. Summaries of further information obtained at conferences held in relation to applications for reviews of a negative prima facie decision, a negative preliminary decision or a rejection decision by the Commissioner do not need to be published on the public record due to the operation of subsection 269ZZW.

 

Item 124 Application provision

Item 124 provides that amendments made by Part 13 apply in relation to any application made with respect to any reviewable decision made on or following the commencement of Part 13. This provision is to provide certainty to the public as to the application of amendments made in Part 13.  The intent of this clause is that potential applicants for merits review will have the full 30 days available under 269ZZD for a Minister’s decision and 269ZZP for a Commissioner’s decision to consider whether to lodge an application knowing that it would be subject to the raised procedural and legal thresholds and conference provisions introduced by Part 13.

 



 

Part 14—Withdrawal of review applications 

Customs Act 1901

 

Item 125 Withdrawal of application

Item 125 inserts a new section 269ZZF.  The new section provides that an applicant for review under Subdivision B - Review of Ministerial decisions, may withdraw that application and the manner of that withdrawal.

 

Item 125 relates to Part 12, where the Minister may, by legislative instrument prescribe a fee to apply for merits review and the instrument may make provision for, and in relation to, the refund or waiver of any fee.  The intent is that the instrument will prescribe a partial refund for the full withdrawal of an application for merits review before that application is accepted by the Review Panel. Specifically, full withdrawal of an application could be an outcome of a conference set out in subsection 269ZZH as outlined in Item 98.

 

Item 125 also introduces the requirement that withdrawals must be written and lodged in the manner prescribed for applications. As the partial refund of the application fee will be linked to the withdrawal of an application, this provision provides certainty regarding the confirmation and time of a withdrawal.

 

Item 126 After section 269ZZQ

Item 126 inserts a new section 269ZZQAA.  The new section provides that an applicant for review under Subdivision C - Review of Commissioner’s decisions, may withdraw that application and the manner of that withdrawal.

 

Item 126 relates to Part 12, where the Minister may, by legislative instrument prescribe a fee to apply for merits review and the instrument may make provision for, and in relation to, the refund or waiver of any fee.  The intent is that the instrument will prescribe a partial refund for the full withdrawal of an application for merits review before that application is accepted by the Review Panel. Specifically, full withdrawal of an application could be an outcome of a conference set out in subsection 269ZZRA as outlined in Item 109.

 

Item 126 also introduces the requirement that withdrawals must be written and lodged in the manner prescribed for applications. As the partial refund of the application fee will be linked to the withdrawal of an application, this provision provides certainty regarding the confirmation and time of a withdrawal.

 

Item 127 Application provision

Item 127 provides that amendments made by Part 14 apply to applications that are made on or following the commencement of Part 14. 



 

Part 15—International Trade Remedies Forum 

Customs Act 1901

 

Item 128 Part XVC

Item 128 repeals Part XVC in its entirety.  Part XVC establishes the International Trade Remedies Forum (the Forum).  The Forum consists of key anti-dumping stakeholders and provides strategic advice to the Government on the operation and reform of Australia’s anti-dumping system.

 

The legislation establishing the Forum is unnecessary stakeholder consultation can operate administratively.  Removing the legislative requirement for the Forum will enable the Government to adopt more flexible consultative arrangements on a needs basis with an associated reduction in the compliance burden on businesses, in line with the Government’s agenda of reducing red tape.