Customs Act 1901

PART XVB - SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES  

Division 1 - Definitions and role of Minister  

SECTION 269T   DEFINITIONS  

269T(1)  


In this Part, unless the contrary intention appears:

"affected party"
, in relation to an application under Division 5 for review of anti-dumping measures imposed on particular goods, means:


(a) a person who is directly concerned with the exportation to Australia of the goods to which the measures relate or who has been directly concerned with the exportation to Australia of like goods; or


(b) a person who is directly concerned with the importation into Australia of the goods to which the measures relate or who has been directly concerned with the importation into Australia of like goods; or


(c) a person representing, or representing a portion of, the Australian industry producing like goods; or


(d) the Government of a country from which like goods have been exported to Australia;

Agreement on Agriculture
(Repealed by No 123 of 2011)

"Agreement on Subsidies and Countervailing Measures"
means the Agreement by that name:


(a) set out in Annex 1A to the World Trade Organization Agreement; and


(b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia;

"agricultural operations"
means:


(a) the cultivation or gathering in of crops; or


(b) the rearing of live-stock; or


(c) the conduct of forestry operations;

and includes:


(d) viticulture, horticulture or apiculture; or


(e) hunting or trapping carried on for the purpose of a business;

"allowable exemption or remission"
, in relation to exported goods, means:


(a) the exemption of those goods from duties or taxes borne by like goods destined for domestic consumption; or


(b) the remission of such duties or taxes otherwise payable in respect of those goods;

in accordance with the provisions of Article XVI of the General Agreement on Tariffs and Trade 1994 and the provisions of Annexes I, II and III of the Agreement on Subsidies and Countervailing Measures;

"Anti-Dumping Act"
(Repealed by No 79 of 1998)

anti-dumping measures
, in respect of goods, means:


(a) the publication of a dumping duty notice or a countervailing duty notice or both; or


(b) the acceptance of an undertaking under section 269TG or 269TJ or of undertakings of both of these sections;

in relation to such goods.

"application"
, in relation to a dumping duty notice or a countervailing duty notice, means an application for the publication of such a notice;

"Authority"
(Repealed by No 79 of 1998)

circumvention activity
has the meaning given by section 269ZDBB .

Commissioner
means the Commissioner of the Anti-Dumping Commission continued in existence under section 269SMB .

Commission staff member
means a member of the staff assisting the Commissioner as mentioned in subsection 269SMQ(1) .

compliance period
means a period prescribed in, or worked out in accordance with, an instrument under subsection (1A).

cooperative exporter
, in relation to:


(a) an investigation under this Part in relation to whether a dumping duty notice should be published; or


(b) a review under Division 5 in relation to the publication of a dumping duty notice; or


(c) an inquiry under Division 6A in relation to the continuation of a dumping duty notice;

means an exporter of goods that are the subject of the investigation, review or inquiry, or an exporter of like goods, where:


(d) the exporter ' s exports were examined as part of the investigation, review or inquiry; and


(e) the exporter was not an uncooperative exporter in relation to the investigation, review or inquiry.

"countervailable subsidy"
means a subsidy that is, for the purposes of section 269TAAC , a countervailable subsidy;

"countervailing duty"
means duty, other than interim countervailing duty:


(a) that is payable on goods under section 10 of the Dumping Duty Act because of a declaration under subsection 269TJ(1) or (2) of this Act; or


(b) that is payable on goods under section 11 of the Dumping Duty Act;

"countervailing duty notice"
means a notice published by the Minister under subsection 269TJ(1) or (2) or 269TK(1) or (2) ;

"country of export"
, in relation to goods exported to Australia, means a country outside Australia from which those goods are exported to Australia, whether or not it is the country where those goods are produced or manufactured;

"country of origin"
, in relation to goods exported to Australia, means a country, whether the country of export or not where those goods are produced or manufactured;

"determination"
means a determination in writing;

"direction"
means a direction in writing;

"dumped goods"
means any goods exported to Australia that the Minister has determined, under section 269TACB , have been dumped;

"dumping duty"
means duty, other than interim dumping duty, that is payable on goods under section 8 or 9 of the Dumping Duty Act;

Dumping Duty Act
means the Customs Tariff (Anti-Dumping) Act 1975 .

"dumping duty notice"
means a notice published by the Minister under subsection 269TG(1) or (2) or 269TH(1) or (2) ;

economy in transition
has the meaning given by subsection (5C).

"fish"
means freshwater or salt-water fish, and includes turtles, dugong, crustacea, molluscs or any other living resources of the sea or of the sea-bed;

"fishing operations"
means:


(a) the taking, catching or capturing of fish; or


(b) the farming of fish; or


(c) pearling operations;

"forestry operations"
means the felling, in a forest or plantation, of standing timber;

"General Agreement on Tariffs and Trade 1994"
means the Agreement by that name:


(a) whose parts are described in Annex 1A to the World Trade Organization Agreement; and


(b) as in force on the day on which the World Trade Organization Agreement enters into force for Australia;

"importation period"
, in relation to goods that have been the subject of a dumping duty notice or a countervailing duty notice means:


(a) in respect of goods covered by a retrospective notice - the period beginning on the day of entry for home consumption of the first consignment of goods to which the retrospective notice applied and ending immediately before the day of publication of the notice; and


(b) in respect of goods covered by a prospective notice:


(i) the period of 6 months beginning on the day of publication of the prospective notice; and

(ii) each successive period of 6 months;

"importer"
, in relation to goods exported to Australia, means:


(a) if paragraph (b) or (d) does not apply - the beneficial owner of the goods at the time of their arrival within the limits of the port or airport in Australia at which they have landed; or


(b) if the goods are taken from parts beyond the seas to an Australian resources installation or if they are goods on board an overseas resources installation at the time when it is attached to the Australian seabed - the beneficial owner of the goods at the time when they are imported into Australia; or


(c) if the goods are an overseas resources installation that becomes attached to the Australian seabed - the beneficial owner of the installation at the time when it is imported into Australia; or


(d) if the goods are taken from parts beyond the seas to an Australian sea installation or are goods on board an overseas sea installation at the time when it is installed in an adjacent area or a coastal area - the beneficial owner of the goods at the time when they are imported into Australia; or


(e) if the goods are an overseas sea installation that becomes installed in an adjacent area or in a coastal area - the beneficial owner of the installation at the time when it is imported into Australia;

interested party
, in relation to:


(a) an application made to the Commissioner under section 269TB requesting that the Minister publish a dumping duty notice or a countervailing duty notice in respect of the goods the subject of the application; or


(b) an application under subsection 269ZA(1) , or a request under subsection 269ZA(3) , for review of anti-dumping measures taken in respect of goods; or


(c) an application under subsection 269ZDBC(1) , or a request under subsection 269ZDBC(2) , for the conduct of an anti-circumvention inquiry in relation to a notice published under subsection 269TG(2) or 269TJ(2) in respect of goods; or


(d) an application under section 269ZHB for a continuation of anti-dumping measures taken in respect of goods;

means:


(e) in the case of an application - the applicant; and


(f) a person or body representing, or representing a portion of, the industry producing, or likely to be established to produce, like goods; and


(g) any person who is or is likely to be directly concerned with the importation or exportation into Australia of the goods the subject of the application or request or who has been or is likely to be directly concerned with the importation or exportation into Australia of like goods; and


(h) any person who is or is likely to be directly concerned with the production or manufacture of the goods the subject of the application or request or of like goods that have been, or are likely to be, exported to Australia; and


(i) a trade organisation a majority of whose members are, or are likely to be, directly concerned with the production or manufacture of the goods the subject of the application or request or of like goods, with their importation or exportation into Australia or with both of those activities; and


(j) the government of the country of export or country of origin:


(i) of goods the subject of the application or request that have been, or are likely to be, exported to Australia; or

(ii) of like goods that have been, or are likely to be, exported to Australia; and


(k) a trade union representing one or more persons employed in the Australian industry producing, or likely to produce, like goods; and


(l) a person who uses the goods the subject of the application or request, or like goods, in the production or manufacture of other goods in Australia.

"interim countervailing duty"
means:


(a) interim countervailing duty imposed under section 10 of the Dumping Duty Act; or


(b) interim third country countervailing duty imposed under section 11 of that Act.

"interim dumping duty"
means:


(a) interim dumping duty imposed under section 8 of the Dumping Duty Act; or


(b) interim third country dumping duty imposed under section 9 of that Act.

"interim duty"
means interim dumping duty or interim countervailing duty;

"investigation period"
, in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods, means a period specified by the Commissioner in a notice under subsection 269TC(4) to be the investigation period in relation to the application;

"like goods"
, in relation to goods under consideration, means goods that are identical in all respects to the goods under consideration or that, although not alike in all respects to the goods under consideration, have characteristics closely resembling those of the goods under consideration.

"member country"
means a country that is, in its own right, a member of the World Trade Organization established by the World Trade Organization Agreement;

"negative preliminary decision"
means a decision of the kind referred to in paragraph 269X(6)(b) or (c) ;

new exporter
, in relation to goods the subject of an application for a dumping duty notice or a countervailing duty notice or like goods, means an exporter who did not export such goods to Australia at any time during the investigation period in relation to the application.

"positive preliminary decision"
means a decision of the kind referred to in paragraph 269X(6)(a) ;

preliminary affirmative determination
means a determination made under section 269TD .

"production cost"
, in relation to processed agricultural goods, means the sum of the direct labour costs, the direct material costs and the factory overhead costs incurred in relation to those goods;

"prospective notice"
means a notice issued under subsection 269TG(2) , 269TH(2) , 269TJ(2) or 269TK(2) ;

public notice
, in relation to a decision, determination or other matter, means notice of the decision, determination or other matter published in accordance with section 269ZI .

public record
means the public record maintained under section 269ZJ .

"raw agricultural goods"
means goods directly obtained by the undertaking of any agricultural operation or any fishing operation;

residual exporter
, in relation to:


(a) an investigation under this Part in relation to whether a dumping duty notice should be published; or


(b) a review under Division 5 in relation to the publication of a dumping duty notice; or


(c) an inquiry under Division 6A in relation to the continuation of a dumping duty notice;

means an exporter of goods that are the subject of the investigation, review or inquiry, or an exporter of like goods, where:


(d) the exporter ' s exports were examined as part of the investigation, review or inquiry; and


(e) the exporter was not an uncooperative exporter in relation to the investigation, review or inquiry.

"retrospective notice"
means a notice issued under subsection 269TG(1) , 269TH(1) , 269TJ(1) or 269TK(1) .

Review Officer
(Repealed by No 205 of 2012)

Review Panel
means the Review Panel established under section 269ZL .

revocation declaration
, in relation to particular anti dumping measures, means:


(a) to the extent that the measures involved the publication of a dumping duty notice or a countervailing duty notice - a declaration by the Minister that the notice is taken to be, or to have been, revoked either in relation to a particular exporter or to exporters generally or in relation to a particular kind of goods; or


(b) to the extent that the measures involved the acceptance by the Minister of an undertaking under section 269TG or 269TJ - a declaration by the Minister that the person who gave the undertaking is released from it and that the investigation giving rise to the undertaking is terminated.

revocation recommendation
, in relation to particular anti dumping measures, means any of the following:


(a) to the extent that the measures involved the publication of a dumping duty notice or a countervailing duty notice - a recommendation by the Commissioner in a report under section 269ZDA that the notice be taken to be, or to have been, revoked either in relation to a particular exporter or to exporters generally or in relation to a particular kind of goods;


(b) to the extent that the measures involved the acceptance by the Minister of an undertaking under section 269TG or 269TJ - a recommendation by the Commissioner in a report under section 269ZDA that the Minister indicate to the person who gave the undertaking that the person is released from it and that the investigation giving rise to the undertaking is terminated.

revocation review notice
, in relation to a review of anti-dumping measures, means any of the following:


(a) a notice relating to the review that is published under subsection 269ZC(4) , (5) or (6) and includes information under paragraph 269ZC(7)(bb) ;


(b) a notice relating to the review that is published under subsection 269ZCC(4) or (7) and includes information under paragraph 269ZCC(8)(c) .

"selected exporter"
(Repealed by No 196 of 2012)

small-medium enterprise
means an enterprise of a kind prescribed in an instrument under subsection (1B).

"subsidy"
, in respect of goods exported to Australia, means:


(a) a financial contribution:


(i) by a government of the country of export or country of origin of the goods; or

(ii) by a public body of that country or a public body of which that government is a member; or

(iii) by a private body entrusted or directed by that government or public body to carry out a governmental function;
that involves:

(iv) a direct transfer of funds from that government or body; or

(v) the acceptance of liabilities, whether actual or potential, by that government or body; or

(vi) the forgoing, or non-collection, of revenue (other than an allowable exemption or remission) due to that government or body; or

(vii) the provision by that government or body of goods or services otherwise than in the course of providing normal infrastructure; or

(viii) the purchase by that government or body of goods or services; or


(b) any form of income or price support as referred to in Article XVI of the General Agreement on Tariffs and Trade 1994 that is received from such a government or body;

if that financial contribution or income or price support confers a benefit (whether directly or indirectly) in relation to the goods exported to Australia.

Note 1:

See also subsection (2AA).

Note 2:

Section 269TACC deals with whether a financial contribution or income or price support confers a benefit.

"third country"
, in relation to goods that have been or may be exported to Australia means a country other than Australia or the country of export, or the country of origin, of those goods;

uncooperative exporter
, in relation to:


(a) an investigation under this Part in relation to whether a dumping duty notice should be published; or


(b) a review under Division 5 in relation to the publication of a dumping duty notice; or


(c) an inquiry under Division 6A in relation to the continuation of a dumping duty notice;

means an exporter of goods that are the subject of the investigation, review or inquiry, or an exporter of like goods, where:


(d) the Commissioner was satisfied that the exporter did not give the Commissioner information the Commissioner considered to be relevant to the investigation, review or inquiry within a period the Commissioner considered to be reasonable; or


(e) the Commissioner was satisfied that the exporter significantly impeded the investigation, review or inquiry.

"World Trade Organization Agreement"
means the Agreement Establishing the World Trade Organization done at Marrakesh on 15 April 1994.

269T(1A)  


The Minister may make a legislative instrument for the purposes of the definition of compliance period in subsection (1).

269T(1B)  


The Minister may, by legislative instrument, prescribe kinds of enterprises for the purposes of the definition of small-medium enterprise in subsection (1).

269T(2)  
For the purposes of this Part, goods, other than unmanufactured raw products, are not to be taken to have been produced in Australia unless the goods were wholly or partly manufactured in Australia.

269T(2A)  
A reference in this Part to the amount of the export price of goods, to the amount of the normal value of goods, to the amount of the subsidy received in respect of goods or to the amount of freight shall, where that amount is not expressed in Australian currency, be read as a reference to the equivalent amount in Australian currency.

269T(2AA)  


Without limiting the definition of subsidy in subsection (1), a financial contribution or income or price support may confer a benefit in relation to goods exported to Australia if that contribution or support is made in relation to goods or services used in relation to the production, manufacture or export of the goods exported to Australia.

269T(2AB)  
(Repealed by No 196 of 2012)

269T(2AC)  
(Repealed by No 196 of 2012)

269T(2AD)  
The fact that an investigation period is specified to start at a particular time does not imply that the Minister may not examine periods before that time for the purpose of determining whether material injury has been caused to an Australian industry or to an industry of a third country.

269T(2AE)  


However, subsection (2AD) does not permit any determination under this Part that dumping has occurred by reference to goods exported to Australia before the start of the investigation period.
Note:

Section 269TACB requires a determination of whether dumping has occurred by reference to goods exported to Australia during the investigation period.

269T(2B)  
For the purposes of this Part, where, during the exportation of goods to Australia, the goods pass in transit from a country through another country, that other country shall be disregarded in ascertaining the country of export of the goods.

269T(3)  
For the purposes of subsection (2), goods shall not be taken to have been partly manufactured in Australia unless at least one substantial process in the manufacture of the goods was carried out in Australia.

269T(4)  
For the purposes of this Part, if, in relation to goods of a particular kind, there is a person or there are persons who produce like goods in Australia:


(a) there is an Australian industry in respect of those like goods; and


(b) subject to subsection (4A), the industry consists of that person or those persons.

269T(4A)  
Where, in relation to goods of a particular kind first referred to in subsection (4), the like goods referred to in that subsection are close processed agricultural goods, then, despite subsection (4), the industry in respect of those close processed agricultural goods consists not only of the person or persons producing the processed goods but also of the person or persons producing the raw agricultural goods from which the processed goods are derived.

269T(4B)  
For the purposes of subsection (4A), processed agricultural goods derived from raw agricultural goods are not to be taken to be close processed agricultural goods unless the Minister is satisfied that:


(a) the raw agricultural goods are devoted substantially or completely to the processed agricultural goods; and


(b) the processed agricultural goods are derived substantially or completely from the raw agricultural goods; and


(c) either:


(i) there is a close relationship between the price of the processed agricultural goods and the price of the raw agricultural goods; or

(ii) a significant part of the production cost of the processed agricultural goods, whether or not there is a market in Australia for those goods, is, or would be, constituted by the cost to the producer of those goods of the raw agricultural goods.

269T(4C)  
Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the production cost of processed agricultural goods to be ascertained for the purpose of subsection (4B), the production cost of those goods is such amount as is determined by the Minister having regard to all relevant information.

269T(4D)  
In this Act, a reference to variable factors relevant to the determination of duty payable under the Dumping Duty Act on particular goods the subject of a dumping duty notice or a countervailing duty notice is a reference:


(a) if the goods are the subject of a dumping duty notice:


(i) to the normal value of the goods; and

(ii) to the export price of the goods; and

(iii) to the non-injurious price of the goods; and


(b) if the goods are the subject of a countervailing duty notice:


(i) to the amount of countervailable subsidy received in respect of the goods; and

(ii) to the export price of the goods; and

(iii) to the non-injurious price of the goods.

269T(4E)  


In this Act, a reference to variable factors relevant to the review under Division 5 of anti-dumping measures, or to the conduct of an anti-circumvention inquiry in relation to a notice published under subsection 269TG(2) or 269TJ(2) , in respect of goods is a reference:


(a) if the goods are the subject of a dumping duty notice - to the normal value, export price and non-injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice; and


(b) if the goods are the subject of a countervailing duty notice:


(i) to the amount of countervailable subsidy received in respect of the goods; and

(ia) to the export price of the goods; and

(ii) to the non-injurious price of the goods;
as ascertained, or last ascertained, by the Minister for the purpose of the notice; and


(c) if the goods are the subject of an undertaking accepted under section 269TG - to the normal value of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exporter in negotiations relating to the acceptability of the undertaking; and


(d) if the goods are the subject of an undertaking accepted under section 269TJ - to the countervailable subsidy received in respect of the goods, and the non-injurious price of the goods, as indicated by the Minister to the exported or to the country of export in negotiations relating to the acceptability of the undertaking.

269T(5)  
A reference in this Act to goods the subject of an application under section 269TB is a reference to goods referred in the application:


(a) that have been imported into Australia;


(b) that are likely to be so imported; or


(c) that may be so imported, being like goods to goods to which paragraph (a) or (b) applies.

269T(5A)  
For the purposes of this Part, the weighted average of prices, values, costs or amounts in relation to goods over a particular period is to be worked out in accordance with the following formula:


P 1 Q 1 + P 2 Q 2 + ... + P n Q n
Q 1 + Q 2 + ... + Q n

where:

" P 1 , P 2 ... P n " means the price, value, cost or amount, per unit, in respect of the goods in the respective transactions during the period;

" Q 1 , Q 2 ... Q n " means the number of units of the goods involved in each of the respective transactions.

269T(5B)  
In working out the number of units of goods involved in a transaction, any units of goods that are, for the purposes of paragraph 269TAB(1)(b) or (c) , subsection 269TAB(3) , paragraph 269TAC(2)(c) or (4)(e) or subsection 269TAC(6) , treated as being involved in a particular transaction are taken to be actually involved in the transaction.

269T(5C)  


A country has an economy in transition at a time if:


(a) before the time, the Government of the country had a monopoly, or a substantial monopoly, of the trade of that country and determined, or substantially influenced, the domestic price of goods in that country; and


(b) at the time, that Government does not:


(i) have a monopoly, or a substantial monopoly, of the trade of that country; or

(ii) determine, or substantially influence, the domestic price of goods in that country.

269T(6)  
Sundays and public holidays shall, notwithstanding the definition of " days " in section 34 be counted as days for the purpose of computing a period for the purposes of this Part but nothing in this subsection shall derogate from the operation of section 36 of the Acts Interpretation Act 1901 .




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