Explanatory Memorandum
(Circulated by authority of the Minister for Industry and Science, the Honourable Ian Macfarlane MP)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 0 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.