Customs Act 1901
Subject to section 269TN , where the Minister is satisfied, as to any goods that have been exported to Australia, that:
(a) a countervailable subsidy has been received in respect of the goods; and
(b) because of that:
(i) material injury to an Australian industry producing like goods has been or is being caused or is threatened or the establishment of an Australian industry producing like goods has been or may be materially hindered; or
(ii) in a case where security has been taken under section 42 in respect of any interim duty that may become payable on the goods under section 10 of the Dumping Duty Act - material injury to an Australian industry producing like goods would or might have been caused if the security had not been taken;
the Minister may, by public notice, declare that section 10 of that Act applies:
(c) to the goods in respect of which the Minister is so satisfied; and
(d) to like goods that were exported to Australia after the Commissioner made a preliminary affirmative determination under section 269TD in respect of the goods referred to in paragraph (c) but before the publication of that notice.
(a) a countervailable subsidy:
(i) has been received in respect of goods the subject of the application that have already been exported to Australia; and
(ii) may be received in respect of like goods that may be exported to Australia in the future; and
(b) because of that, material injury to an Australian industry producing like goods has been or is being caused or is being threatened, or the establishment of an Australian industry producing like goods has been or may be materially hindered;
the Minister may, by public notice (whether or not he or she has made, or proposes to make, a declaration under subsection (1) in respect of like goods that have been exported to Australia), declare that section 10 of the Dumping Duty Act applies to like goods that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.
If the export of a consignment of goods to Australia has been under consideration by the Minister so as to decide whether or not to publish a countervailing duty notice under this section in relation to the goods in the consignment or to like goods, the Minister may give notice, in writing, to the government of the country of export or to the exporter stating that:
(a) the Minister is of the opinion that it would be appropriate for the government or the exporter to give an undertaking in accordance with subsection (3) to the Minister; and
(b) an undertaking, in the terms set out in the notice, would be satisfactory to the Minister.
Whether or not a notice has been given to a government or to an exporter in respect of goods in the consignment or like goods, the Minister may defer the decision to publish or not to publish a countervailing duty notice covering those goods if the Minister is given and accepts an undertaking to which subsection (3A) applies.
(a) to an undertaking given by a government - if it is an undertaking that the government will, in relation to any export trade to Australia in like goods, review any countervailable subsidy delivered by that government and make any changes found to be necessary to avoid:
(i) causing or threatening material injury to an Australian industry producing like goods; or
(ii) materially hindering the establishment of such an Australian industry; and
(b) to an undertaking by an exporter - if it is an undertaking that the exporter will so conduct future trade to Australia in like goods as to avoid:
(i) causing or threatening material injury to an Australian industry producing like goods; or
(ii) materially hindering the establishment of such an Australian industry.
In giving a notice, and in considering the terms of any proposed undertaking, the Minister must have regard to the desirability that any price increase arising from the undertaking is limited to an amount such that the total price of the goods is not more than the non-injurious price of the goods.
However, subsection (3B) does not require the Minister to have regard to the matter in that subsection if the Minister is satisfied that either or both of the following apply in relation to the goods in the consignment:
(a) the country of export has not complied with Article 25 of the Agreement on Subsidies and Countervailing Measures for the compliance period;
(b) there is an Australian industry in respect of like goods that consists of at least 2 small-medium enterprises, whether or not that industry consists of other enterprises.
(a) may give a notice under subsection (2A) whether or not the giving of such a notice has been recommended by the Commissioner in a recommendation under section 269TEA ; and
(b) may accept an undertaking whether or not the acceptance of such an undertaking has been recommended by the Commissioner in a recommendation under section 269TEB ; and
(c) must not:
(i) give a notice to a government or exporter under subsection (2A); or
in respect of particular goods or like goods unless a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG , has been made to the effect that there are grounds for publication of a countervailing duty notice in respect of those like goods; and
(ii) accept an undertaking from a government or an exporter;
(d) must not accept an undertaking from an exporter unless the government of the country of export consents to the giving of the undertaking; and
(e) must give public notice of any undertaking so accepted.
(a) giving the Minister, on an agreed basis, information that is relevant to the fulfilment of the undertaking; and
(b) providing the Minister with appropriate access to such information.
The acceptance by the Minister of an undertaking from an exporter does not prevent the exporter requesting the Minister to determine whether, had the undertaking not been accepted, the Minister would have published a countervailing duty notice or would have decided not to publish such a notice.
The Minister must, if an exporter makes such a request, and may, on his or her own initiative, determine whether he or she would have published a countervailing duty notice or would have decided not to publish such a notice if the undertaking had not been accepted.
Subsection (3F) does not imply that the Minister is required to make a determination under that subsection before the Minister has received a report from the Commissioner in relation to the matter.
If the Minister determines under subsection (3F) that he or she would have decided not to publish a countervailing duty notice, the undertaking automatically lapses.
(Repealed by No 79 of 1998) 269TJ(11) [Statement of subsidy and non-injurious price]
If a notice under subsection (1) or (2) declares particular goods to be goods to which section 10 of the Dumping Duty Act applies, the notice must, subject to subsection (12), include a statement setting out:
(a) the amount of countervailable subsidy that the Minister ascertained, at the time of publication of the notice, had been or would be received in respect of the goods to which the notice relates; and
(b) the amount that the Minister has ascertained, at that time, was or would be the non-injurious price of the goods.
(a) the amount of any countervailable subsidy received in respect of goods to which a declaration under subsection (1) or (2) relates; or
(b) the non-injurious price of any goods to which a declaration under subsection (1) or (2) relates;
claims, in writing, that the information is confidential or that the inclusion in a notice under that subsection of the amount of that subsidy or of the amount of that non-injurious price would adversely affect the person ' s business or commercial interests:
(c) in accordance with subsection 269ZI(9) , the Minister is not required to include a statement of that amount or that price in the notice; but
(d) upon request the Commissioner may provide a statement of that amount or that price to persons who, in the Commissioner ' s opinion, would be affected parties in any review of the rate of interim duty imposed on like goods to the goods to which the declaration relates.
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