Explanatory Memorandum
(Circulated by authority of the Minister for Industry and Science, the Honourable Ian Macfarlane MP)Statement of compatibility with human rights
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