Customs Act 1901

PART XVB - SPECIAL PROVISIONS RELATING TO ANTI-DUMPING DUTIES  

Division 1 - Definitions and role of Minister  

SECTION 269TAE   MATERIAL INJURY TO INDUSTRY  

269TAE(1)   [To Australian industry]  

In determining, for the purposes of section 269TG or 269TJ , whether material injury to an Australian industry has been or is being caused or is threatened or would or might have been caused, or whether the establishment of an Australian industry has been materially hindered, because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C) have regard to:


(aa) if the determination is being made for the purposes of section 269TG - the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and


(ab) if the determination is being made for the purposes of section 269TJ - particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and


(a) the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and


(b) any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and


(c) any change or likely change, during a particular period, in the proportion that:


(i) the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or

(ii) the quantity of goods of that kind, or like goods, produced or manufactured in the Australian industry and sold or consumed in Australia;
bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and


(d) the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and


(e) the difference between:


(i) the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and

(ii) the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and


(f) the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the Australian industry and sold in Australia; and


(g) any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the Australian industry; and


(h) if the determination is being made for the purposes of section 269TJ and the goods are agricultural products - whether the exportation of goods of that kind to Australia from the country of export in those circumstances has given or is likely to give rise to a need for financial or other support, or an increase in financial or other support, for the Australian industry from the Commonwealth Government.

269TAE(2)   [To third country]  

In determining, for the purposes of section 269TH or 269TK , whether material injury to an industry in a third country has been or is being caused or is threatened or would or might have been caused because of any circumstances in relation to the exportation of goods to Australia from the country of export, the Minister may, without limiting the generality of that section but subject to subsections (2A) to (2C) have regard to:


(aa) if the determination is being made for the purposes of section 269TH - the size of the dumping margin, or of each of the dumping margins, worked out in respect of goods of that kind that have been exported to Australia and dumped; and


(ab) if the determination is being made for the purposes of section 269TK - particulars of any countervailable subsidy received in respect of goods of that kind that have been exported to Australia; and


(a) the quantity of goods of that kind that, during a particular period, have been or are likely to be exported to Australia from the country of export; and


(b) any increase or likely increase, during a particular period, in the quantity of goods of that kind exported to Australia from the country of export; and


(c) any change or likely change, during a particular period, in the proportion that:


(i) the quantity of goods of that kind exported to Australia from the country of export and sold or consumed in Australia; or

(ii) the quantity of goods of that kind, or like goods, produced or manufactured in the third country and sold or consumed in Australia;
bears to the quantity of goods of that kind, or like goods, sold or consumed in Australia; and


(d) the export price that has been or is likely to be paid by importers for goods of that kind exported to Australia from the country of export; and


(e) the difference between:


(i) the price that has been or is likely to be paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and

(ii) the price that has been or is likely to be paid for goods of that kind exported to Australia from the country of export and sold in Australia; and


(f) the effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the price paid for goods of that kind, or like goods, produced or manufactured in the third country and sold in Australia; and


(g) any effect that the exportation of goods of that kind to Australia from the country of export in those circumstances has had or is likely to have on the relevant economic factors in relation to the producer or manufacturer in the third country.

269TAE(2A)   [Injury or hindrance to injury]  

In making a determination in relation to the exportation of goods to Australia for the purposes referred to in subsection (1) or (2), the Minister must consider whether any injury to an industry, or hindrance to the establishment of an industry, is being caused or threatened by a factor other than the exportation of those goods such as:


(a) the volume and prices of imported like goods that are not dumped; or


(b) the volume and prices of importations of like goods that are not subsidised; or


(c) contractions in demand or changes in patterns of consumption; or


(d) restrictive trade practices of, and competition between, foreign and Australian producers of like goods; or


(e) developments in technology; or


(f) the export performance and productivity of the Australian industry;

and any such injury or hindrance must not be attributed to the exportation of those goods.

269TAE(2AA)  


A determination for the purposes of subsection (1) or (2) must be based on facts and not merely on allegations, conjecture or remote possibilities.

269TAE(2B)   [Foreseeable and imminent injury]  

In determining:


(a) for the purposes of subsection (1), whether or not material injury is threatened to an Australian industry; or


(b) for the purposes of subsection (2), whether or not material injury is threatened to an industry in a third country;

because of the exportation of goods into the Australian market, the Minister must take account only of such changes in circumstances, including changes of a kind determined by the Minister, as would make that injury foreseeable and imminent unless dumping or countervailing measures were imposed.

269TAE(2C)   [Cumulative effect]  

In determining, for the purposes referred to in subsection (1) or (2), the effect of the exportations of goods to Australia from different countries of export, the Minister should consider the cumulative effect of those exportations only if the Minister is satisfied that:


(a) each of those exportations is the subject of an investigation; and


(b) either:


(i) all the investigations of those exportations resulted from applications under section 269TB lodged with the Commissioner on the same day; or

(ii) the investigations of those exportations resulted from applications under section 269TB lodged with the Commissioner on different days but the investigation periods for all the investigations of those exportations overlap significantly; and


(c) if the determination is being made for the purposes of section 269TG or 269TH - the dumping margin worked out under section 269TACB for the exporter for each of the exportations is at least 2% of the export price or weighted average of export prices used to establish that dumping margin; and


(d) if the determination is being made for the purposes of section 269TG or 269TH - for each application, the volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period (as defined in subsection 269TDA(17) ) from the country of export and dumped is not taken to be negligible for the purposes of subsection 269TDA(3) because of subsection 269TDA(4) ; and


(da) if the determination is being made for the purposes of section 269TJ or 269TK :


(i) the amount of the countervailable subsidy in respect of the goods the subject of each of the exportations exceeds the negligible level of countervailable subsidy worked out under subsection 269TDA(16) ; and

(ii) the volume of each of those exportations is not negligible; and


(e) it is appropriate to consider the cumulative effect of those exportations, having regard to:


(i) the conditions of competition between those goods; and

(ii) the conditions of competition between those goods and like goods that are domestically produced.

269TAE(3)   [Relevant economic factors]  

A reference in subsection (1) or (2) to the relevant economic factors in relation to an Australian industry, or in relation to an industry in a third country, in relation to goods of a particular kind exported to Australia is a reference to:


(a) the quantity of goods of that kind, or like goods, produced or manufactured in the industry; and


(b) the degree of utilization of the capacity of the industry to produce or manufacture goods of that kind, or like goods; and


(c) the quantity of goods of that kind, or like goods, produced or manufactured in the industry:


(i) for which there are sales or forward orders; or

(ii) which are held as stocks; and


(d) the value of sales of, or forward orders for, goods of that kind, or like goods, produced or manufactured in the industry; and


(e) the level of profits earned in the industry, that are attributable to the production or manufacture of goods of that kind, or like goods; and


(f) the level of return on investment in the industry; and


(g) cash flow in the industry; and


(h) 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; and


(ha) the terms and conditions of employment (including the number of hours worked) of persons employed in the industry in relation to the production or manufacture of goods of that kind, or like goods; and


(j) the share of the market in Australia for goods of that kind, or like goods, that is held by goods of that kind, or like goods, produced or manufactured in the industry; and


(k) 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


(m) investment in the industry.




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