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Customs Amendment (Anti-Dumping) Bill 2011

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2010-2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of Senator N Xenophon)

 

 

 

 

 

 

 

 

 

 

 

CUSTOMS AMENDMENT (ANTI-DUMPING) BILL 2011

 

 

1.         Short Title

This clause is a formal provision and specifies the short title of Bill, once enacted, as the Customs Amendment (Anti-Dumping) Act 2011 .

 

2.         Commencement

This clause provides for the commencement of Sections 1 to 4 of the Act the day the Act receives the Royal Assent, and for Schedule 1 to commence the day after the Act receives Royal Assent.

 

3.       Schedule(s)

This clause states that each Act specified in a Schedule to this Act is amended or repealed according to the provisions of this Act, according to its terms.

 

4.         Review of operation of Part XVB of Customs Act as amended

Clause 4 requires the Minister to initiate an independent review within 2 years of the operation of Part XVB of the Customs Act 1901 as amended.

 

The independent review will be conducted by at least three persons. These persons should include those who the Minister considers to hold appropriate qualifications and those who have substantial experience or knowledge in international trade and foreign affairs or economics. The panel will not include any currently serving officers of Customs, however Customs will, if requested, assist the panel in conducting the review and preparing the written report.

 

The review will also include the opportunity for written submissions to be made by interested parties and members of the public.

 

The review is to be provided to the Minister within 6 months after the end of the 2-year period and must be tabled in each House of the Parliament within 15 sitting days of the Minister receiving it.

 

Schedule 1 - Amendment of the Customs Act 1901

 

1.         Items 1 and 2 inserts "trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods" into the definition of 'affected parties' and 'interested parties' in Part XVB of this Act.

 

This is supported by Item 32 which inserts trade union organisations into the definition of 'interested parties' in Division 9 of Part XVB of the Act, which relates to reviews of dumping decisions by the Review officer.

 

2.         Items 3, 4 and 7 adds to sections 269TACB (which relates to establishing whether dumping has occurred and levels of dumping) and 269TAG (where the Minister may take anti-dumping measures on own initiative), and substitutes into 269TAE(2A) (which relates to injury being caused or threatened by other factors) that, in instances where dumping has been proven and material injury has been proven, a presumption exists whereby the material injury is determined to be as a result of dumping.

 

3.         Items 5 and 6 inserts into Section 269TAE of the Act consideration by the Minister of any "impact on jobs" and any "impact on capital investment in the industry" as part of relevant economic factors in relation to an Australian industry in determining whether or not material injury is threatened.

 

4.         Items 8 and 11 inserts requirements that the Application for Dumping and/or Countervailing Duties form be a legislative instrument and allows supporting evidence provided to be as recent as 90 days prior to the application being made to be submitted as well as other information as prescribed by the regulations.

 

5.         Item 11 also inserts provisions that the CEO have regard to any new or updated information provided by an interested party that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry.

 

6.         Provisions for new and updated information to be provided during application, investigation and review, that reasonably could not have been provided earlier by interested parties, and for relevant industry experts to be consulted as part of any investigation and review is also inserted into the Act through Items 16, 17, 18, 25, 26, 29, 30, 31, 33, 35, 38, 41, 42, 43, 44 and 45.

 

7.         Items 9 and 10 repeals subsection 269TB(6) and inserts provisions which allow small manufacturers whose individual production of like goods may not account for more than 50% or less than 25% of the total production or manufacture of like goods in Australia to make applications and, where a supporting application(s) has been independently lodged and the cumulative production of these applicants accounts for at least 25% of total production or manufacture of like goods in Australia, then the applications may be considered by the CEO as per other applications received.

 

8.         Item 12 inserts a provision for where the CEO does not reject an application, the importer of the imported goods which are the subject of the application bears the onus of proving that the imported goods have not been dumped or subsidised for export into Australia. Any material lack of cooperation on the part of the importer of the imported goods would lead to a presumption that the imported goods are dumped goods.

 

9.         Item 13 removes the 60 day requirement before the CEO can make a preliminary affirmative determination during an investigation and items 36 and 46 insert provisions for the Review Officer to make affirmative decisions during a review, enabling interim duties to be collected.

 

10.     Items 14 and 15 enables the CEO to forecast and consider potential impacts on the relevant Australian industry and related industries, such as on employment (including the multiplier effect - where a decrease in employment in one sector triggers further unemployment in related sectors), capital investment and market operations, when deciding to make a preliminary affirmative determination or in its statement of essential facts on which the CEO proposes to base a recommendation to the Minister in relation to that application. It also provides for relevant industry experts to be consulted as part of this consideration.

 

11.     Items 19, 20, 21 and 22 repeals paragraphs of the Act relating to information provided to assist the Minister which may be commercial-in-confidence (Paragraphs 269TG(3A), 269TH(4)(a) and (b), 269TJ(12)(c) and (d), 269K(6)(c) and (d) and 269X(3)(a) and requires that that information is not be published in any way.

 

12.     Item 23 repeals paragraph 269X(3)(a) and substitutes that, unless the person supplying particular information has claimed the information is confidential or that it might adversely affect the business or commercial interests of the person supplying the information, the applicant may be provided a copy of information by the CEO by way of a summary which allows a reasonable understanding of the information that will not breach confidentiality or adversely affect the person supplying the information.

 

13.     Item 24 inserts a requirement for relevant and related Australian industry experts to be consulted by the CEO within 20 days of Customs receiving an application for review of anti-dumping measures.

 

14.     Item 27 inserts a requirement that the application form for the continuation of anti-dumping measures be a legislative instrument and accompanied by other information as prescribed by the regulations.

 

15.     Item 28 inserts a requirement for relevant and related Australian industry experts to be consulted by the CEO within 60 days of Customs receiving the application for continuation of anti-dumping measures.

 

16.     Item 34 inserts into the Act provision for applicants who, in making an application for a review of a decision under subsection 269ZZE(2) may provide new or updated information that reasonably could not have been provided earlier.

 

17.     Item 37 relates to subsection 269ZZG(2) which states that nothing prevents the Review Officer from seeking further particulars from an applicant, including new or updated information that reasonably could not have been provided earlier.

 

18.     Item 39 repeals subparagraph 269ZZL(2)(a)(i) and requires that the Minister, if they accept a recommendation by the Review Officer to require the CEO to reinvestigate a finding or findings, must, in writing, require the CEO to have regard to any new or updated information that has been subsequently provided and which reasonably could not have been provided earlier as part of its investigation.

 

19.     Item 40 relates to applications made for a review and inserts that an applicant in application for a review may provide new or updated information that could not have reasonably been provided earlier.

 

20.     Item 47 adds to subsection 273GA(1) a decision of the CEO, the Minister or the Review Officer as subject to review by the Administrative Appeals Tribunal.



ADDITIONAL NOTES:

 

Clause 4

 

 

- Requires the Minister to cause an independent review of the first two years of this Part of the Act (Part XVB), as amended.

- The Panel must consist of at least 3 persons who have appropriate qualifications and/or have substantial experience or knowledge in international trade and foreign affairs or economics. It cannot include a currently serving officer of Customs.

- Written submissions will be able to be made by interested parties and members of the public.

- The Independent Panel will have 6 months to report.

- The Minister must table the report within 15 sitting days in each House of Parliament.

Item 1

Subsection 269T(1)

Insert

Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of ‘affected party’.

 

This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in any investigation or review process to appropriately represent their members whose jobs may be at risk as a result of dumped goods.

Item 2

Subsection 269T(1)

Insert

Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of 'interested party'.

 

This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in any investigation or review process to appropriately represent their members whose jobs may be at risk as a result of dumped goods.

Item 3

Section 269TACB

Add

Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping rather than any other factor.

Item 4

Subsection 269TAE(2A)

Repeal and substitute

Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping.

 

Currently, this subsection lists other factors that can be considered by the Minister as the cause of the injury, even though dumping has been proven to have occurred.

Item 5

Paragraph 269TAE(3)(h)

Insert

Expands the consideration of economic factors by the Minister to include "impact on jobs".

 

Currently, this paragraph only states "the number of persons employed, and the level of wages paid to persons employed, in the industry in relation to the production or manufacture of goods of that kind or like goods".

Item 6

Paragraph 269TAE(3)(m)

Insert

Expands the consideration of economic factors by the Minister to include "impact on capital investment".

 

Currently, this paragraph only states "the ability of persons engaged in the industry, to raise capital in relation to the production or manufacture of goods of that kind, or like goods" and "investment in the industry".

Item 7

Section 269TAG

Add

Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping rather than any other factor.

Item 8

Subsection 269TB(1)

Insert

- Makes the Application for Dumping and/or Countervailing Duties form a Legislative Instrument.

- Allows supporting evidence to be provided as part of the Application for Dumping and/or Countervailing Duties to be as recent as 90 days prior to the application being made, as well as other information as prescribed by the regulations.

 

Currently, the Application for Dumping and/or Countervailing Duties form does not specify a minimum period for data provision. However, it states that "sufficient data must be provided to substantiate the claims made. If yearly data is provided, this would typically comprise a period of at least four years (for example the current financial year in addition to three prior years). Where information is supplied for a shorter period, applicants may consider the use of quarterly data".

 

Stakeholders have advised that this extensive period of time for evidence to be collated means that injury to their industry is already caused before any submission can be made.

Item 9

Subsection 269TB(6)

Repeal and substitute

Allows small manufacturers (whose individual production of like goods may not account for more than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make applications and, where a supporting application(s) has been independently lodged and the cumulative production accounts is greater than 25% of the total production or manufacture of like goods in Australia, then the applications may be considered by the CEO as per normal.

 

Some small manufacturers have advised that they do not feel comfortable liaising with other manufacturers because they don't wish to share information, or they may not be aware of all of the details, may not have the resources, or they may not want to draw attention to themselves, etc. 

 

This amendment will enable the CEO to consider individual applications in cognate where the cumulative total production is greater than 25%.

Item 10

Paragraph 269TC(4)(b)

Insert

Allows small manufacturers (whose individual production of like goods may not account for more than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make applications and, where a supporting application(s) has been independently lodged and the cumulative production accounts is greater than 25% of the total production or manufacture of like goods in Australia, then the applications may be considered by the CEO as per normal.

 

Some small manufacturers have advised that they do not feel comfortable liaising with other manufacturers because they don't wish to share information, or they may not be aware of all of the details, may not have the resources, or they may not want to draw attention to themselves, etc.

 

This amendment will enable the CEO to consider individual applications in cognate where the cumulative total production is greater than 25%.

Item 11

Subsection 269TC(4)

Insert

- Allows supporting evidence provided as part of the Application for Dumping and/or Countervailing Duties to be as recent as 90 days prior to the application, as well as other information as prescribed by the regulations.

- Inserts a provision that the CEO may have regard to any new or updated information provided by an interested party that reasonably could not have been provided earlier and to consult with persons with expertise in the relevant industry.

 

Currently, the Application for Dumping and/or Countervailing Duties form does not specify a minimum period for data provision. However, it states that "sufficient data must be provided to substantiate the claims made. If yearly data is provided, this would typically comprise a period of at least four years (for example the current financial year in addition to three prior years). Where information is supplied for a shorter period, applicants may consider the use of quarterly data".

 

Stakeholders have advised that this extensive period of time for evidence to be collated means that injury to their industry is already caused before any submission can be made.

Item 12

Section 269TC

Insert

- Where the CEO accepts an application, this amendment provides that the importer of the imported goods which is the subject of the application bears the onus of proving that the goods have not been dumped or are not subsidised for export into Australia.

- Any material lack of cooperation would lead to a presumption that the imported goods are dumped goods.

 

Currently, local manufacturers are spending hundreds of thousands of dollars gathering evidence to build a case. This will put the onus of proof on the alleged importer to prove that the goods are not dumped. This is also intended to expedite the process.

Item 13

Subsection 269TD(1)

Omit

Removes the 60 day requirement before the CEO can make a preliminary affirmative determination.

 

This means that securities can be collected from the importer of the alleged goods as soon as an investigation has been initiated.

 

This is intended to protect local manufacturers while an investigation is ongoing, as investigations can last up to 155 days, if not more, and so the application of duties on the alleged dumped goods will ensure no injury is caused to local industry.

Item 14

Paragraph 269TD(2)(a)

Add

- Enables the CEO to forecast and consider potential impacts on the relevant and related Australian industries, including but not limited to employment (including the multiplier effect - where a decrease in employment in one sector triggers further unemployment in related sectors ), capital investment and market operations, when making a decision to apply a preliminary affirmative determination.

- Provides for relevant industry experts to be consulted as part of this consideration.

Item 15

Paragraph 269TDAA(2)(a)

Add

- Enables the CEO to forecast and consider potential impacts on the relevant and related Australian industries, including but not limited to employment (including the multiplier factor), capital investment and market operations in its statement of essential facts.

- Provides for relevant industry experts to be consulted as part of this consideration.

Item 16

Subsection 269TE(2)

Insert

Allows the CEO, if required to make a recommendation or decision normally made by the Minister, to consider new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review.

Item 17

Paragraph 269TEA(3)(a)

Add

In deciding on the recommendations to be made to the Minister in the CEO’s report, the CEO must have regard to new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry.

Item 18

Subsection 269TEB(4)

Insert

If an undertaking in revised terms is proposed to the CEO, the CEO must have regard to new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review.

Item 19

Paragraphs 269TG(3A)(a) and (b)

Repeal and substitute

Where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way.

 

Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission.

Item 20

Paragraphs 269TH(4)(a) and (b)

Repeal and substitute

With respect to third country dumping duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way.

 

Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission.

Item 21

Paragraphs 269TJ (12)(c) and (d)

Repeal and substitute

With respect to countervailing duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way.

 

Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission.

Item 22

Paragraphs 269TK(6)(c) and (d)

Repeal and substitute

With respect to third country countervailing duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way.

 

Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission.

Item 23

Paragraph 269X(3)(a)

Repeal and substitute

- Where the CEO proposes to take into account any relevant information that was not supplied by the applicant but by an alternate source, the CEO must give the applicant a copy of the information unless it has been claimed by the supplier to be confidential.

- In this instance, the applicant may be provided a summary of the information in a form that allows reasonable understanding of the information but which does not breach confidentiality or adversely affect the interests of the provider of the information.

 

Currently, the applicant is provided the information unless the CEO believes it would adversely affect the business or commercial interests of the provider of the information, and allows the applicant to make a submission within 155 days in response.

Item 24

Subsection 269ZC(1)

Insert

Inserts a requirement for relevant and related Australian industry experts to be consulted by the CEO within 20 days of Customs receiving an application for review of anti-dumping measures.

 

Currently there is no provision for experts to be consulted.

Item 25

Paragraph 269ZC(1)(b)

Repeal and substitute

Where an application for review of anti-dumping measures is lodged, this amendment requires if the CEO is not satisfied, having regard to the application, any new or updated information that reasonably could not have been provided earlier or any information from persons with expertise in the relevant industry as part of consultations, then the CEO must reject the application.

 

Currently, the paragraph only requires that the CEO have regard to the application and other information that the CEO considers relevant, it does refer to consultation with experts or new or updated information.

Item 26

Paragraph 269ZD(2)(a)

Add

In formulating the statement of essential facts, this amendment allows the CEO to have regard to any new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review.

 

Currently, the paragraph only specifies the application and any submissions received by Customs within 40 days after the publication of the notice.

Item 27

Subsection 269ZHC(1)

Insert

Makes the Application for Continuation of a Dumping Duty and/or a Countervailing Duty Notice or Continuation of an Undertaking form a Legislative Instrument.

Item 28

Subsection 269ZHD(1)

Insert

Inserts a requirement for persons with expertise in the relevant industry and related industries to be consulted by the CEO within 60 days of Customs receiving an application for continuation of anti-dumping measures.

 

Currently, there is no provision for experts to be consulted.

Item 29

Paragraph 269ZHD(1)(b)

Repeal and substitute

Where an application for continuation of anti-dumping measures is lodged, this amendment requires that if the CEO is not satisfied, having regard to the application, any new or updated information that reasonably could not have been provided earlier or any information from persons with expertise in the relevant industry as part of consultations, then the CEO must reject the application.

 

Currently, there is no reference to new or updated information or consultation with industry experts.

Item 30

Paragraph 269ZHE(2)(a)

Add

Provides that, in formulating the statement of essential facts, the CEO must also have regard to any new or updated information that reasonably could not have been provided earlier, and any information provided by persons with expertise in the relevant industry.

Item 31

Paragraph 269ZHF(3)(a)

Add

In deciding on the recommendations to be made to the Minister in the CEO’s report, this amendment requires the CEO to have regard to any new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry.

Item 32

Section 269ZX

Insert

Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of 'interested party' in Division 9 of the Act which relates to Review by a Review Officer.

Item 33

Subsection 269ZZ(1)

Insert

Allows the Review Officer, if required to make a recommendation or decision normally made by the Minister to consider new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review.

Item 34

Subsection 269ZZE(2)

Insert

Includes in this section which sets out the provisions for how an application for a review of a decision must be made, that an applicant may provide new or updated information to the Review Officer that reasonably could not have been provided earlier.

Item 35

Section 269ZZE

Insert

Inserts a provision for the Review Officer to consult with persons with expertise in the relevant industry and related industries in conducting its review.

Item 36

Section 269ZZF

Insert

Inserts the provision for the Review officer to apply a Review Officer ministerial decision affirmative determination, which says that if the Review Officer is satisfied there are reasonable grounds to reinvestigate a matter, the Review Officer must give public notice of that determination and Customs may require and take securities in respect of interim duty that may become payable if the officer of Customs is satisfied that it is necessary to do so to prevent material injury to industry.

 

This is intended to protect local manufacturers by applying securities to goods under review while the review is being conducted.

Item 37

Subsection 269ZZG(2)

Insert

Currently, the paragraph reads: "Nothing in subsection (1) prevents the Review Officer from seeking further particulars from an applicant within that period.

 

This amendment adds "including new or updated information that reasonably could not have been provided earlier".

Item 38

Subsection 269ZZK(6)

Add

This amendment adds to the definition of 'relevant information' under a review by the Review Officer, to include new or updated information to be that reasonably could not have been provided earlier, and information and analysis provided by persons with expertise in the relevant industry or related industries.

Item 39

Subparagraph 269ZZL(2)(a)(i)

Repeal and substitute

If the Minister accepts the recommendation from the Review Officer to require the CEO to reinvestigate a finding or findings, this amendment requires that the Minister must, in writing, require the CEO to make further investigation and have regard to the information from the Review Officer as well as any new or updated information that is subsequently provided by an interested party that reasonably could not have been provided earlier.

Item 40

Subsection 269ZZQ(1)

Insert

Allows applicants for review to provide new or updated information that reasonably could not have been provided earlier.

 

Many stakeholders have advised that the Review Officer only looks at evidence provided during the initial investigation and this limits their case. Rather, by being able to provide new or updated information they may be able to further substantiate their case against the alleged dumped goods.

Item 41

Section 269ZZQ

Insert

Inserts a provision that, in conducting a review, the Review officer must consult with persons with expertise in the relevant Australian industry and related industries. And have regard to any information or analysis provided by persons with expertise in the relevant Australian industry and related industries.

Item 42

Subsection 269ZZS(3)

Repeal and substitute

This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries.

 

Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision".

Item 43

Subsection 269ZZT(4)

Repeal and substitute

This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries.

 

Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision".

Item 44

Subsection 269ZZU(3)

Repeal and substitute

In reviewing a negative preliminary decision, this amendment says that the Review Officer may consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries.

 

Currently, the paragraph only says the Review Officer must have regard to information that was before the CEO when the CEO made the reviewable decision.

Item 45

Subsection 269ZZUA(5)

Repeal and substitute

This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries.

 

Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision".

Item 46

Section 269ZZUA

Insert

- Inserts the provision that if an application makes an application for a review of a negative prima facie decision or a termination decision and the Review Officer is considering the application, the Review officer may make a Review Officer CEO decision affirmative determination, and give notice of that determination.

- Customs may then require and take securities that become payable if it is satisfied that it is necessary to do so t prevent material injury to an Australian industry while the review is ongoing and until the Minister makes a decision.

 

This means that securities can be collected from the importer of the alleged goods as soon as a Review by the Review Officer has been initiated.

 

This is intended to protect local manufacturers while a review is ongoing.

Item 47

Subsection 273GA(1)

Add

This amendment allows that a decision of the CEO, the Minister or the Review Officer may be applied to the Administrative Appeals Tribunal for review.