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Bills Digest No. 233 1997-98
Customs Legislation (Anti-dumping Amendments) Bill 1998
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Customs Legislation (Anti-dumping Amendments) Bill 1998
Date Introduced: 14
May 1998
House: House of Representatives
Portfolio: Customs
and Consumer Affairs
Commencement: With
the exception of item 11 of Schedule 3, the amendments outlined
in this Digest commence on Proclamation. However, if they do not commence
within 6 months of the Bill receiving Royal Assent, they will be taken
to have commenced the day after that end of that period. Item 11
of Schedule 3, which provides for the repeal of the Anti-Dumping
Authority Act 1988, will commence on Proclamation, but not more than
150 days after the date fixed for the commencement of the other provisions
in the Bill.
The major amendments proposed by
the Bill:
- abolish the Anti-Dumping Authority
- establish a new independent reviewer, the Trade Measures Review Officer,
to review certain decisions, including a decision of the Minister not
to publish a dumping or countervailing duty notice
- establish new procedures for decisions regarding anti-dumping and
countervailing subsidisation within the Australian Customs Service (ACS),
including a new timetable for decision-making
- allow the Minister to independently initiate anti-dumping and countervailing
subsidisation investigations.
What is dumping?
Dumping occurs when products from one country are exported
to another country at prices less than their normal value. Australian
anti-dumping law is the product of Australia's obligations under the General
Agreement on Tariffs and Trade, the Agreement on Implementation of Article
VI (the Anti-Dumping Code) and the Agreement on Interpretation and Application
of Articles VI, XVI and XXIII (the Code on Subsidies and Countervailing
Duties). The Customs Act 1901 and the Customs Tariff (Anti-Dumping)
Act 1975 are the principal legislative instruments relating to anti-dumping.
Where an application claiming dumping has been lodged
with the Anti-Dumping Authority (ADA), which administers Australia's anti-dumping
system, the ADA must determine whether there are sufficient grounds to
initiate an investigation. Within the statutory period allowed for consideration
of a claim, the ADA considers matters including whether the goods meet
the produced in Australia requirements, injury factors, the adequacy and
accuracy of price evidence produced and whether a causal link exists between
the alleged dumping and injury to an Australian industry.
Countervailing duties are duties imposed on imports to
offset government subsidies to producers or exporters in the exporting
country.
The Willet Review
On 25 June 1996 the Minister for Small Business and Consumer
Affairs appointed the independent consultant Lawrie Willett to undertake
a review of Australia's anti-dumping and countervailing administration.
The terms of reference for the Review were as follows:
Being mindful of Australia's international obligations under the World
Trade Organisation, the review will examine and advise the Minister for
Small Business and Consumer Affairs on:
how the Government's state policy objective to improve procedures to ensure
Australian producers are not disadvantaged can be met with particular
regard to:
- how the specific measures proposed can be implemented while maintaining
the integrity and quality of the decision making process; and/or
- what alternative measures could more effectively achieve the stated
objectives.
As part of this examination, the review will assess whether
the roles and functions of the Australian Customs Service and the Anti-Dumping
Authority need to change to achieve the required outcomes and any consequential
resource implications.
Willett delivered his report to the Government on 6 September
1996. The Review made the following major recommendations:
- the ADA be abolished and that Customs implement an internal review
process
- the prima facie investigation period be reduced to 20 days
- that provisional measures be capable of being imposed after 60 days
of an investigation has elapsed
- that Customs complete its initial investigation within a period of
100 days from the initiation of the investigation
- that Customs undertake responsibility for the entire 155 day investigation
period. Under the Willett model, the process would incorporate an initial
investigation period of 100 days, 120 in complex cases, followed by
a review period of 55 days. Customs would then forward a report and
recommendations to the Minister.(1)
The Bill, for the most part, represents the Government's
response to the Willett Review. While both Willett and the Government
propose the abolition of the ADA, the Government's approach differs in
one major respect, that is, provision for a process of external appeal.
Whereas Willett proposed a two-stage one agency process, the Government
proposes a two-stage one agency process which is followed by a process
of external appeal, namely, the establishment of the TMRO.
Implementation of the Government's proposals is estimated
to result in notional savings of $50 000 per annum for the next three
financial years. This figures compares with an estimated annual saving
of $1 million under the Willett proposals.
Main
Provisions
A new section 269TAG is inserted in the Principal
Act by item 38 the main effect of which is to allow the Minister,
on his/her initiative, to commence an investigation into an anti-dumping
measure. Where the Minister initiates an investigation it must be carried
out in accordance with the Minister's requirements. The Minister is also
accorded power to take anti-dumping measures as a consequence of an investigation.
The effect of item 42 is to reduce from 25 days
to 20 days the period within which the Chief Executive Officer (CEO) of
Customs has to determine whether an application for the imposition of
a dumping duty or countervailing duty should be rejected.
Item 43 places a 30 day time limit within which
a person who has an application rejected may refer the matter to Trade
Measures Review Officer (TMRO).
Subsection 269TC(4) of the Principal Act sets out what
must be contained in a public notice advising of the commencement of an
investigation into dumping or countervailable subsidisation. The principal
amendments proposed by item 46 are to require the public notice
to:
- indicate that a report will be made by the Minister within 155 days
of commencement of the investigation of the goods subject to the application
- state that within 110 days of commencing an investigation, or such
longer period as the Minister determines under proposed section 269ZHI,
the CEO must place on the public record a statement of the essential
facts on which s/he proposed to base a recommendation to the Minister
- invite interested parties to lodge with the CEO, within 20 days of
the CEO placing on the public record a statement of the essential facts
on which s/he proposed to base a recommendation to the Minister, submissions
in response to that statement.
New section 269TD, dealing with preliminary affirmative
determinations, is inserted in the Principal Act by item 47. The
proposed section provides the CEO with the power to make preliminary affirmative
determinations. A preliminary affirmative determination is a determination
by the CEO made 60 days after the date of initiation of an investigation
into whether there are sufficient grounds for a dumping or countervailing
duty notice that there appears to be, or will be, such sufficient grounds.
Item 47 also inserts a new section 269TDAA
in the Principal Act which requires the CEO to publicly publish a statement
of essential facts on which s/he proposed to base a recommendation to
the Minister in relation to an investigation into dumping or countervailable
subsidisation. The statement is to be published within 110 days, or such
longer period as the Minister allows, of the initiation of an investigation.
Where the CEO terminates an investigation into dumping
or countervailable subsidisation, s/he must inform the applicant of their
right, within 30 days of public notice of the termination decision, to
apply for a review of the decision by the TMRO (item 48).
Section 269X of the Principal Act deals with Customs
consideration of an application for assessment of duty. The effect of
item 63 is to reduce from 180 days to 150 the period within which
the CEO must consider an application for assessment of duty in respect
of goods entered for home consumption. The 180 day period will also be
reduced to 150 in respect of:
- the period within which a person must supply the CEO, where so requested,
with information relevant to the consideration of an application for
assessment of duty
- where the CEO proposed to take into account any relevant information
that was not supplied to her/him by the applicant for an assessment
of duty, the period within which the applicant has to make any further
submission.
The period within which a person, other than the applicant
for an assessment of duty, must supply the CEO, where so requested, with
information relevant to the consideration of an application is reduced
from 150 days to 120 days.
New sections 269Z-269ZDB, dealing with the internal
review of anti-dumping measures, are inserted in the Principal Act by
item 70. The major effects of the proposed sections include:
- providing affected parties with the opportunity to apply to the CEO
for a review of the measures (Such an application may only be lodged
in certain circumstances, including where one or more of the variable
factors (eg. normal value) relevant to the measures have changed, and
within 12 months of publication of a dumping or countervailing duty
notice.)
- providing the Minister with power to initiate at any time, on the
recommendation of the CEO or on her/his initiative, a review of anti-dumping
measures. (Such a review may only be initiated where one or more of
the variable factors relevant to the measures have changed, or if those
measures had not been taken, the Minister would not be entitled to take
any such measures.)
- requiring the CEO to approve or reject an application by an affected
party for review of anti-dumping measures within 20 days of receipt
of the application
- requiring the CEO, by public notice, to indicate that a report in
relation to a review of anti-dumping measures will be made to the Minister
within 155 days of publication of the notice
- requiring the CEO to publicly publish a statement of essential facts
on which s/he proposes to base a recommendation to the Minister in relation
to a review of anti-dumping measures within 110 days of publication
of the notice, or such longer period as the Minister allows
- requiring a refund of duty where a ministerial declaration pursuant
to a review of anti-dumping measures changes results in a reduction
of duty payable
New sections 269ZHA-269ZHG, dealing with the continuation
of anti-dumping measures, is inserted in the Principal Act by item
74. The major effects of the proposed sections include:
- 9 months before an anti-dumping measure expires, that the public be
notified of that expiry and interested parties be invited to apply within
60 days of the public notification for a continuation of the measures
- termination of anti-dumping measures where no application for continuation
is received by the CEO
- requiring the CEO, by public notice, to indicate that a report in
relation to a continuation will be made to the Minister within 155 days
of publication of the notice (this period may be extended if the period
described below is extended)
- requiring the CEO to publicly publish a statement of essential facts
on which s/he proposes to base a recommendation to the Minister in relation
to a continuation of anti-dumping measures within 110 days of publication
of the notice, or such longer period as the Minister allows
- providing the Minister with an absolute discretion to approve or not
approve the continuation of anti-dumping measure following receipt of
the report of the CEO and any other information s/he considers relevant
in relation to the continuation of anti-dumping measures
- providing that where the Minister approves the continuation of anti-dumping
measures, those measures continue in force for 5 years unless revoked
or provision is made for their earlier expiration.
Item 86 inserts new sections 269ZK-269ZZY,
dealing with the Trade Measures Review Officer (TMRO), in the Principal
Act. Proposed section 269ZL provides for the appointment, by the
Minister, of the TMRO. The Minister is prohibited from appointing a person
as TMRO who is a Customs officer. The TMRO will have the same protection
and immunity as a High Court Justice in the performance of her/his duties
(proposed section 269ZN). The TMRO will hold office for a period
not exceeding three years and on terms and conditions determined by the
Minister (proposed section 269ZO). The TMRO is prevented from supplying
information (other than personal information) to a person if to do so
would constitute a breach of confidence and also personal information
unless it is supplied to the CEO, or a Customs officer, for purposes relating
to a reinvestigation. These confidentiality rules will not apply to the
Minister, CEO, Secretary to the Department, designated Customs officer,
or designated departmental officer (proposed section 269ZU).
Proposed section 269ZV makes it an offence, punishable
by a maximum fine of $2200, for a person to knowingly give the TMRO false
or misleading information. No offence will have been committed where the
person informs the TMRO, at the time the information is provided, that
the information if false or misleading and specifies in what respect it
is so.
The major effects of proposed sections 269ZW-269ZZY,
which deal with review by the TMRO, include:
- providing interested parties (an interested party includes a person
who is likely to be directly concerned with the importation or exportation
into Australia of goods the subject of a reviewable decision (proposed
section 269ZX)) which are affected by a reviewable decision with
an opportunity to apply to the TMRO for a review of the decision (a
reviewable decision includes a decision of the Minister to publish or
not publish a dumping or countervailing duty notice (proposed sections
269ZZA and 269ZZN))
- after the TMRO accepts an application for a review, requiring that
s/he issue a public notice indicating s/he proposes to conduct a review
(the notice must include certain matters, including inviting interested
parties to lodge within 30 days of publication of the notice submissions
concerning the application) (proposed section 269ZZI)
- requiring the TMRO to report to the Minister at least 30 days after
public notification of the review, but not later than 60 after that
notification, or such longer period as the Minister allows (proposed
section 269ZZK)
- where the Minister receives a recommendation from the TMRO to affirm
a reviewable decision, or does not accept a recommendation by the TMRO
to require the CEO to reinvestigate a finding/s that formed the basis
of the decision, requiring the Minister to publicly affirm the reviewable
decision (proposed section 269ZZL)
- where the Minister accepts a recommendation of the TMRO to require
the CEO to reinvestigate a finding/s, requiring the Minister to direct
the CEO to further investigate the finding/s, report the result of the
reinvestigation, and issue a public notice of acceptance of the TMRO's
recommendation (proposed section 269ZZL)
- following a reinvestigation by the TMRO and receipt of a report, requiring
that the Minister affirm or revoke the reviewable decision concerned.
(Where the Minister affirms a reviewable decision s/he may publish a
dumping or countervailing duty notice, vary a dumping or countervailing
duty notice, or revoke and substitute another dumping or countervailing
duty notice.)
Item 11 of Schedule 3 of the Bill repeals
the Anti-Dumping Authority Act 1988.
- L. Willett, Review of Australia's Anti-Dumping and Countervailing
Administration, Sept 1996, 19-21.
Ian Ireland
22 June 1998
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1998
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Published by the Department of the Parliamentary Library, 1998.
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