Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Customs Act 1901 in relation to anti-dumping duties, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 03 Mar 2011
Introduced Senate 02 Mar 2011
Table of contents.

 

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

 

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Customs Amendment (Anti‑Dumping) Bill 2011

 

No.      , 2011

 

(Senator Xenophon)

 

 

 

A Bill for an Act to amend the Customs Act 1901 in relation to anti‑dumping duties, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 2

4............ Review of operation of Part XVB of Customs Act as amended......... 2

Schedule 1—Amendment of the Customs Act 1901                                         4

 


A Bill for an Act to amend the Customs Act 1901 in relation to anti‑dumping duties, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Customs Amendment (Anti‑Dumping) Act 2011.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 4 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4  Review of operation of Part XVB of Customs Act as amended

             (1)  The Minister must cause an independent review to be undertaken of the first 2 years of the operation of Part XVB of the Customs Act 1901 as amended by this Act.

             (2)  The persons undertaking the review must give the Minister a written report of the review within 6 months after the end of the 2‑year period.

             (3)  The review must include an opportunity for interested parties and members of the public to make written submissions on the operation of Part XVB as amended by this Act.

             (4)  The Chief Executive Officer of Customs and officers of Customs must, if requested to do so by the persons undertaking the review, assist them in:

                     (a)  conducting the review; and

                     (b)  preparing the written report.

             (5)  The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after he or she receives the report.

             (6)  In this section:

independent review means a review undertaken by at least 3 persons who:

                     (a)  in the Minister’s opinion possess appropriate qualifications to undertake the review; and

                     (b)  do not include any currently serving officers of Customs; and

                     (c)  include a person who has substantial experience or knowledge in international trade and foreign affairs or economics.

Schedule 1Amendment of the Customs Act 1901

  

1  Subsection 269T(1) (after paragraph (c) of the definition of affected party)

Insert:

                    (ca)  a trade union organisation some of whose members are directly concerned with the production or manufacture of like goods;

2  Subsection 269T(1) (after paragraph (e) of the definition of interested party)

Insert:

                    (ea)  a trade union organisation some of whose members are directly concerned with the production or manufacture of like goods; and

3  At the end of section 269TACB

Add:

           (11)  If the Minister determines under this section that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of section 269TAE.

4  Subsection 269TAE(2A)

Repeal the subsection, substitute:

          (2A)  If the Minister determines under section 269TACB or 269TAG that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of this section.

5  Paragraph 269TAE(3)(h)

After “the number of persons employed,”, insert “including the impact on jobs,”.

6  At the end of paragraph 269TAE(3)(m)

Add “, including impact on capital investment in the industry”.

7  At the end of section 269TAG

Add:

             (7)  If the Minister determines under this section that goods exported to Australia have been dumped, there is a rebuttable presumption that this dumping results in material injury to industry for the purposes of section 269TAE.

8  After subsection 269TB(1)

Insert:

          (1A)  An application under subsection (1) must:

                     (a)  be in the form prescribed by the regulations and contain the information required by the form; and

                     (b)  require supporting data relating to no more than the last 90 days; and

                     (c)  be accompanied by any other information or documents prescribed by the regulations.

9  Subsection 269TB(6)

Repeal the subsection, substitute:

             (6)  An application under subsection (1) in relation to a consignment of goods is taken to be supported by a sufficient part of the Australian industry if the CEO is satisfied that:

                     (a)  the contents of the application identify that persons (including the applicant) who produce or manufacture like goods in Australia and who support the application:

                              (i)  account for more than 50% of the total production or manufacture of like goods produced or manufactured by that portion of the Australian industry that has expressed either support for, or opposition to, the application; and

                             (ii)  account for not less than 25% of the total production or manufacture of like goods in Australia; or

                     (b)  if supporting applications have been lodged in respect of the application under paragraph 269TC(4)(baa)—the persons lodging those supporting applications together with the applicant account for not less than 25% of the total production or manufacture of like goods in Australia.

10  After paragraph 269TC(4)(b)

Insert:

         (baa)  if the application was not made on behalf of persons (including the applicant) who account for more than 25% of the total production or manufacture of like goods in Australia—stating that other persons who produce or manufacture like goods in Australia may, in writing, lodge supporting applications with the CEO; and

11  After subsection 269TC(4)

Insert:

          (4A)  A supporting application under paragraph (4)(baa) must:

                     (a)  be in the form prescribed by the regulations and contain the information required by the form; and

                     (b)  require supporting data relating to no more than the last 90 days; and

                     (c)  be accompanied by any other information or documents prescribed by the regulations.

          (4B)  If the CEO decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the CEO:

                     (a)  must have regard to any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                     (b)  must consult persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by those persons as a consequence of those consultations;

for the purposes of considering the application and making a recommendation to the Minister.

12  After section 269TC

Insert:

269TCA  Onus of proof if application not rejected

             (1)  If the CEO decides not to reject an application under subsection 269TB(1), the importer of the imported goods the subject of the application bears the onus of proving that the imported goods have not been:

                     (a)  dumped into Australia; or

                     (b)  subsidised for export into Australia.

             (2)  Any material lack of cooperation for the purposes of subsection (1) by the importer of the imported goods the subject of the application must give rise to the rebuttable presumption of dumping and/or subsidised export into Australia by the importer.

13  Subsection 269TD(1)

Omit “60 days after”.

14  At the end of paragraph 269TD(2)(a)

Add:

                            (iii)  any potential impacts forecast by the CEO in relation to the economic condition of the relevant Australian industry and related Australian industries, including but not limited to employment (including the multiplier effect), capital investment and market operation; and

                            (iv)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

15  At the end of paragraph 269TDAA(2)(a)

Add:

                            (iii)  any potential impacts forecast by the CEO in relation to the economic condition of the relevant Australian industry and related Australian industries, including but not limited to employment (including the multiplier effect), capital investment and market operation; and

                            (iv)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

16  After subsection 269TE(2)

Insert:

          (2A)  Subsection (2) does not preclude consideration by the CEO of:

                     (a)  any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                     (b)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b).

17  At the end of paragraph 269TEA(3)(a)

Add:

                             (v)  any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                            (vi)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b); and

18  After subsection 269TEB(4)

Insert:

          (4A)  If the CEO is considering the terms of an undertaking under subsection (2) or the revised terms of an undertaking under subsection (4), the CEO must have regard to:

                     (a)  any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                     (b)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under paragraph 269TC(4A)(b);

for the purpose of that consideration.

19  Paragraphs 269TG(3A)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  in accordance with subsection 269ZI(9) the Minister is not required to include in the notice a statement of that value or price; and

                     (b)  that value or price must not be published in any other way.

20  Paragraphs 269TH(4)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  in accordance with subsection 269ZI(9), the Minister is not required to include in the notice a statement of that value or price; and

                     (b)  that value or price must not be published in any other way.

21  Paragraphs 269TJ(12)(c) and (d)

Repeal the paragraphs, substitute:

                     (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; and

                     (d)  that amount or that price must not be published in any other way.

22  Paragraphs 269TK(6)(c) and (d)

Repeal the paragraphs, substitute:

                     (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)  that amount or that price must not be published in any other way.

23  Paragraph 269X(3)(a)

Repeal the paragraph, substitute:

                     (a)  give the applicant a copy of the information that he or she proposes to take into account, unless the person supplying the information has claimed that the information is confidential or that the provision of that information to any other person would adversely affect the business or commercial interests of the person supplying the information; or

                    (aa)  if paragraph (a) applies—give the applicant a summary of that information in a form that allows a reasonable understanding of the information without breaching that confidentiality or adversely affecting those interests; and

24  Before subsection 269ZC(1)

Insert:

          (1A)  If an application for review of anti‑dumping measures is lodged with Customs under section 269ZB, the CEO must, within 20 days after Customs receives the application, consult persons with expertise in the relevant Australian industry and related Australian industries.

25  Paragraph 269ZC(1)(b)

Repeal the paragraph, substitute:

                     (b)  if the CEO is not satisfied in relation to the application, having regard to:

                              (i)  the application; and

                             (ii)  any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                            (iii)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

                            (iv)  any other information that the CEO considers relevant;

                            of one or more of the matters referred to in subsection (2);

26  At the end of paragraph 269ZD(2)(a)

Add:

                            (iii)  any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

                            (iv)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZC(1A); and

27  After subsection 269ZHC(1)

Insert:

          (1A)  An application under subsection (1) must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  be accompanied by any other information or documents prescribed by the regulations.

28  Before subsection 269ZHD(1)

Insert:

          (1A)  If an application for continuation of anti‑dumping measures is lodged with Customs in accordance with section 269ZHC, the CEO must, within the 60 days referred to in paragraph 269ZHB(1)(b), consult persons with expertise in the relevant Australian industry and related Australian industries.

29  Paragraph 269ZHD(1)(b)

Repeal the paragraph, substitute:

                     (b)  if the CEO is not satisfied in relation to any of the applications, having regard to:

                              (i)  the application; and

                             (ii)  any new or updated information that subsequently is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                            (iii)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries during consultations under subsection (1A); and

                            (iv)  any other information that the CEO considers relevant;

                            of one or more of the matters referred to in subsection (2);

30  At the end of paragraph 269ZHE(2)(a)

Add:

                            (iii)  any new or updated information that is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

                            (iv)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

31  At the end of paragraph 269ZHF(3)(a)

Add:

                             (v)  any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                            (vi)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under subsection 269ZHD(1A); and

32  Section 269ZX (after paragraph (e) of the definition of interested party)

Insert:

                    (ea)  a trade union organisation some of whose members are directly concerned with the production or manufacture of like goods;

33  After subsection 269ZZ(1)

Insert:

          (1A)  Subsection (1) does not preclude consideration by the Review Officer of:

                     (a)  any new or updated information that is provided to him or her by an interested party that reasonably could not have been provided earlier; and

                     (b)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA or 269ZZQA.

34  After subsection 269ZZE(2)

Insert:

          (2A)  An applicant may, in an application for a review, provide new or updated information to the Review Officer that reasonably could not have been provided earlier.

35  After section 269ZZE

Insert:

269ZZEA  Consultation with persons with expertise in the relevant Australian industry and related Australian industries

                   In conducting a review under this Subdivision, the Review Officer must consult persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by those persons as a consequence of those consultations.

36  After section 269ZZF

Insert:

269ZZFA  Review Officer ministerial decision affirmative determination

             (1)  If:

                     (a)  an applicant makes an application for a review of a reviewable decision provided for in paragraph 269ZZA(1)(b); and

                     (b)  the Review Officer is satisfied, under section 269ZZF, that there are reasonable grounds to warrant the reinvestigation of the finding or findings specified in the application;

the Review Officer may make a determination (a Review Officer ministerial decision affirmative determination) to that effect.

             (2)  If the Review Officer makes a Review Officer ministerial decision affirmative determination:

                     (a)  the Review Officer must give public notice of that determination; and

                     (b)  Customs may, at the time of making that determination or at any later time during the review, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while:

                              (i)  the review continues under this Subdivision; and

                             (ii)  if the Review Officer recommends under paragraph 269ZZK(1)(b) that a finding or findings be reinvestigated—the reinvestigation continues under Division 2 until the Minister makes a decision under subsection 269ZZM(1).

37  Subsection 269ZZG(2)

After “particulars”, insert “, including new or updated information that reasonably could not have been provided earlier,”.

38  Subsection 269ZZK(6) (at the end of the definition of relevant information)

Add:

                   ; and (iii)  that is new or updated information provided by an interested party that reasonably could not have been provided earlier; and

                     (c)  any new or updated information for the purposes of the information to which paragraph (a) or (b) relates that reasonably could not have been provided earlier; and

                     (d)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZEA.

39  Subparagraph 269ZZL(2)(a)(i)

Repeal the subparagraph, substitute:

                              (i)  make further investigation of the finding or findings, having regard to the information and conclusions to which the Review Officer had regard and to any new or updated information that subsequently is provided to the CEO by an interested party that reasonably could not have been provided earlier; and

40  After subsection 269ZZQ(1)

Insert:

          (1A)  An applicant may, in an application for a review, provide new or updated information to the Review Officer that reasonably could not have been provided earlier.

41  After section 269ZZQ

Insert:

269ZZQA  Consultation with persons with expertise in the relevant Australian industry and related Australian industries

                   In conducting a review under this Subdivision, the Review Officer must consult persons with expertise in the relevant Australian industry and related Australian industries and must have regard to any information and analysis provided by those persons as a consequence of those consultations.

42  Subsection 269ZZS(3)

Repeal the subsection, substitute:

             (3)  In making a decision under this section, the Review Officer may have regard to:

                     (a)  information that was before the CEO when the CEO made the reviewable decision; and

                     (b)  any new or updated information that subsequently is provided to the Review Officer by an interested party that reasonably could not have been provided earlier; and

                     (c)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQA.

43  Subsection 269ZZT(4)

Repeal the subsection, substitute:

             (4)  In making a decision under this section, the Review Officer may have regard to:

                     (a)  information that was before the CEO when the CEO made the reviewable decision; and

                     (b)  any new or updated information that subsequently is provided to the Review Officer by an interested party that reasonably could not have been provided earlier; and

                     (c)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQA.

44  Subsection 269ZZU(3)

Repeal the subsection, substitute:

             (3)  In making a decision under this section, the Review Officer may have regard to:

                     (a)  information of the kinds referred to in subsection 269X(5) that was before the CEO when the CEO made the reviewable decision; and

                     (b)  any new or updated information that subsequently is provided to the Review Officer by an interested party that reasonably could not have been provided earlier; and

                     (c)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQA.

45  Subsection 269ZZUA(5)

Repeal the subsection, substitute:

             (5)  In making a decision under this section, the Review Officer may have regard to:

                     (a)  information that was before the CEO when the CEO made the rejection decision; and

                     (b)  any new or updated information that subsequently is provided to the Review Officer by an interested party that reasonably could not have been provided earlier; and

                     (c)  any information and analysis provided by persons with expertise in the relevant Australian industry and related Australian industries as a consequence of consultations under section 269ZZQA.

46  After section 269ZZUA

Insert:

269ZZUB  Review Officer CEO decision affirmative determination

             (1)  If:

                     (a)  an applicant makes an application for a review of a negative prima facie decision or a termination decision; and

                     (b)  the Review Officer is considering the application under section 269ZZS or 269ZZT, as the case requires;

the Review Officer may make a determination (a Review Officer CEO decision affirmative determination) to that effect.

             (2)  If the Review Officer makes a Review Officer CEO decision affirmative determination:

                     (a)  the Review Officer must give public notice of that determination; and

                     (b)  Customs may, at the time of making that determination or at any later time during the review, require and take securities under section 42 in respect of interim duty that may become payable if the officer of Customs taking the securities is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while:

                              (i)  the review continues under this Subdivision; and

                             (ii)  if the Review Officer makes a decision under paragraph 269ZZS(1)(b) or 269ZZT(1)(b),as the case may be—the investigation continues under Division 2 until the Minister makes a decision under Division 3.

47  At the end of subsection 273GA(1)

Add:

                      (t)  a decision of the CEO, the Minister or the Review Officer for the purposes of Part XVB.