| ADDITIONAL NOTES: |
| Clause 4 | | - Requires the Minister to cause an independent review of the first two years of this Part of the Act (Part XVB), as amended. - The Panel must consist of at least 3 persons who have appropriate qualifications and/or have substantial experience or knowledge in international trade and foreign affairs or economics. It cannot include a currently serving officer of Customs. - Written submissions will be able to be made by interested parties and members of the public. - The Independent Panel will have 6 months to report. - The Minister must table the report within 15 sitting days in each House of Parliament. |
| Item 1 | Subsection 269T(1) Insert | Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of ‘affected party’. This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in any investigation or review process to appropriately represent their members whose jobs may be at risk as a result of dumped goods. |
| Item 2 | Subsection 269T(1) Insert | Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of 'interested party'. This will enable representatives such as the AWU, AMWU, CFMEU, etc. to be directly involved in any investigation or review process to appropriately represent their members whose jobs may be at risk as a result of dumped goods. |
| Item 3 | Section 269TACB Add | Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping rather than any other factor. |
| Item 4 | Subsection 269TAE(2A) Repeal and substitute | Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping. Currently, this subsection lists other factors that can be considered by the Minister as the cause of the injury, even though dumping has been proven to have occurred. |
| Item 5 | Paragraph 269TAE(3)(h) Insert | Expands the consideration of economic factors by the Minister to include "impact on jobs". Currently, this paragraph only states "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". |
| Item 6 | Paragraph 269TAE(3)(m) Insert | Expands the consideration of economic factors by the Minister to include "impact on capital investment". Currently, this paragraph only states "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 "investment in the industry". |
| Item 7 | Section 269TAG Add | Allows that, where dumping has been proven and material injury has been proven, the presumption is that the material injury is as a result of dumping rather than any other factor. |
| Item 8 | Subsection 269TB(1) Insert | - Makes the Application for Dumping and/or Countervailing Duties form a Legislative Instrument. - Allows supporting evidence to be provided as part of the Application for Dumping and/or Countervailing Duties to be as recent as 90 days prior to the application being made, as well as other information as prescribed by the regulations. Currently, the Application for Dumping and/or Countervailing Duties form does not specify a minimum period for data provision. However, it states that "sufficient data must be provided to substantiate the claims made. If yearly data is provided, this would typically comprise a period of at least four years (for example the current financial year in addition to three prior years). Where information is supplied for a shorter period, applicants may consider the use of quarterly data". Stakeholders have advised that this extensive period of time for evidence to be collated means that injury to their industry is already caused before any submission can be made. |
| Item 9 | Subsection 269TB(6) Repeal and substitute | Allows small manufacturers (whose individual production of like goods may not account for more than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make applications and, where a supporting application(s) has been independently lodged and the cumulative production accounts is greater than 25% of the total production or manufacture of like goods in Australia, then the applications may be considered by the CEO as per normal. Some small manufacturers have advised that they do not feel comfortable liaising with other manufacturers because they don't wish to share information, or they may not be aware of all of the details, may not have the resources, or they may not want to draw attention to themselves, etc. This amendment will enable the CEO to consider individual applications in cognate where the cumulative total production is greater than 25%. |
| Item 10 | Paragraph 269TC(4)(b) Insert | Allows small manufacturers (whose individual production of like goods may not account for more than 50% or less than 25% of the total production or manufacture of like goods in Australia) to make applications and, where a supporting application(s) has been independently lodged and the cumulative production accounts is greater than 25% of the total production or manufacture of like goods in Australia, then the applications may be considered by the CEO as per normal. Some small manufacturers have advised that they do not feel comfortable liaising with other manufacturers because they don't wish to share information, or they may not be aware of all of the details, may not have the resources, or they may not want to draw attention to themselves, etc. This amendment will enable the CEO to consider individual applications in cognate where the cumulative total production is greater than 25%. |
| Item 11 | Subsection 269TC(4) Insert | - Allows supporting evidence provided as part of the Application for Dumping and/or Countervailing Duties to be as recent as 90 days prior to the application, as well as other information as prescribed by the regulations. - Inserts a provision that the CEO may have regard to any new or updated information provided by an interested party that reasonably could not have been provided earlier and to consult with persons with expertise in the relevant industry. Currently, the Application for Dumping and/or Countervailing Duties form does not specify a minimum period for data provision. However, it states that "sufficient data must be provided to substantiate the claims made. If yearly data is provided, this would typically comprise a period of at least four years (for example the current financial year in addition to three prior years). Where information is supplied for a shorter period, applicants may consider the use of quarterly data". Stakeholders have advised that this extensive period of time for evidence to be collated means that injury to their industry is already caused before any submission can be made. |
| Item 12 | Section 269TC Insert | - Where the CEO accepts an application, this amendment provides that the importer of the imported goods which is the subject of the application bears the onus of proving that the goods have not been dumped or are not subsidised for export into Australia. - Any material lack of cooperation would lead to a presumption that the imported goods are dumped goods. Currently, local manufacturers are spending hundreds of thousands of dollars gathering evidence to build a case. This will put the onus of proof on the alleged importer to prove that the goods are not dumped. This is also intended to expedite the process. |
| Item 13 | Subsection 269TD(1) Omit | Removes the 60 day requirement before the CEO can make a preliminary affirmative determination. This means that securities can be collected from the importer of the alleged goods as soon as an investigation has been initiated. This is intended to protect local manufacturers while an investigation is ongoing, as investigations can last up to 155 days, if not more, and so the application of duties on the alleged dumped goods will ensure no injury is caused to local industry. |
| Item 14 | Paragraph 269TD(2)(a) Add | - Enables the CEO to forecast and consider potential impacts on the relevant and related Australian industries, including but not limited to employment (including the multiplier effect - where a decrease in employment in one sector triggers further unemployment in related sectors), capital investment and market operations, when making a decision to apply a preliminary affirmative determination. - Provides for relevant industry experts to be consulted as part of this consideration. |
| Item 15 | Paragraph 269TDAA(2)(a) Add | - Enables the CEO to forecast and consider potential impacts on the relevant and related Australian industries, including but not limited to employment (including the multiplier factor), capital investment and market operations in its statement of essential facts. - Provides for relevant industry experts to be consulted as part of this consideration. |
| Item 16 | Subsection 269TE(2) Insert | Allows the CEO, if required to make a recommendation or decision normally made by the Minister, to consider new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review. |
| Item 17 | Paragraph 269TEA(3)(a) Add | In deciding on the recommendations to be made to the Minister in the CEO’s report, the CEO must have regard to new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry. |
| Item 18 | Subsection 269TEB(4) Insert | If an undertaking in revised terms is proposed to the CEO, the CEO must have regard to new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review. |
| Item 19 | Paragraphs 269TG(3A)(a) and (b) Repeal and substitute | Where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way. Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission. |
| Item 20 | Paragraphs 269TH(4)(a) and (b) Repeal and substitute | With respect to third country dumping duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way. Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission. |
| Item 21 | Paragraphs 269TJ (12)(c) and (d) Repeal and substitute | With respect to countervailing duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way. Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission. |
| Item 22 | Paragraphs 269TK(6)(c) and (d) Repeal and substitute | With respect to third country countervailing duties, where a person has provided information to assist the Minister to ascertain values and prices relating to dumped goods, the Minister is not required to include this information in the dumping duties notice or in any other way. Currently, the subparagraph states that the CEO may notify persons who would be affected parties. This removes this permission. |
| Item 23 | Paragraph 269X(3)(a) Repeal and substitute | - Where the CEO proposes to take into account any relevant information that was not supplied by the applicant but by an alternate source, the CEO must give the applicant a copy of the information unless it has been claimed by the supplier to be confidential. - In this instance, the applicant may be provided a summary of the information in a form that allows reasonable understanding of the information but which does not breach confidentiality or adversely affect the interests of the provider of the information. Currently, the applicant is provided the information unless the CEO believes it would adversely affect the business or commercial interests of the provider of the information, and allows the applicant to make a submission within 155 days in response. |
| Item 24 | Subsection 269ZC(1) Insert | Inserts a requirement for relevant and related Australian industry experts to be consulted by the CEO within 20 days of Customs receiving an application for review of anti-dumping measures. Currently there is no provision for experts to be consulted. |
| Item 25 | Paragraph 269ZC(1)(b) Repeal and substitute | Where an application for review of anti-dumping measures is lodged, this amendment requires if the CEO is not satisfied, having regard to the application, any new or updated information that reasonably could not have been provided earlier or any information from persons with expertise in the relevant industry as part of consultations, then the CEO must reject the application. Currently, the paragraph only requires that the CEO have regard to the application and other information that the CEO considers relevant, it does refer to consultation with experts or new or updated information. |
| Item 26 | Paragraph 269ZD(2)(a) Add | In formulating the statement of essential facts, this amendment allows the CEO to have regard to any new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review. Currently, the paragraph only specifies the application and any submissions received by Customs within 40 days after the publication of the notice. |
| Item 27 | Subsection 269ZHC(1) Insert | Makes the Application for Continuation of a Dumping Duty and/or a Countervailing Duty Notice or Continuation of an Undertaking form a Legislative Instrument. |
| Item 28 | Subsection 269ZHD(1) Insert | Inserts a requirement for persons with expertise in the relevant industry and related industries to be consulted by the CEO within 60 days of Customs receiving an application for continuation of anti-dumping measures. Currently, there is no provision for experts to be consulted. |
| Item 29 | Paragraph 269ZHD(1)(b) Repeal and substitute | Where an application for continuation of anti-dumping measures is lodged, this amendment requires that if the CEO is not satisfied, having regard to the application, any new or updated information that reasonably could not have been provided earlier or any information from persons with expertise in the relevant industry as part of consultations, then the CEO must reject the application. Currently, there is no reference to new or updated information or consultation with industry experts. |
| Item 30 | Paragraph 269ZHE(2)(a) Add | Provides that, in formulating the statement of essential facts, the CEO must also have regard to any new or updated information that reasonably could not have been provided earlier, and any information provided by persons with expertise in the relevant industry. |
| Item 31 | Paragraph 269ZHF(3)(a) Add | In deciding on the recommendations to be made to the Minister in the CEO’s report, this amendment requires the CEO to have regard to any new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry. |
| Item 32 | Section 269ZX Insert | Includes trade union organisations, some of whose members are directly concerned with the production or manufacture of like goods, within the definition of 'interested party' in Division 9 of the Act which relates to Review by a Review Officer. |
| Item 33 | Subsection 269ZZ(1) Insert | Allows the Review Officer, if required to make a recommendation or decision normally made by the Minister to consider new or updated information that reasonably could not have been provided earlier, and to consult with persons with expertise in the relevant industry as part of any investigation and review. |
| Item 34 | Subsection 269ZZE(2) Insert | Includes in this section which sets out the provisions for how an application for a review of a decision must be made, that an applicant may provide new or updated information to the Review Officer that reasonably could not have been provided earlier. |
| Item 35 | Section 269ZZE Insert | Inserts a provision for the Review Officer to consult with persons with expertise in the relevant industry and related industries in conducting its review. |
| Item 36 | Section 269ZZF Insert | Inserts the provision for the Review officer to apply a Review Officer ministerial decision affirmative determination, which says that if the Review Officer is satisfied there are reasonable grounds to reinvestigate a matter, the Review Officer must give public notice of that determination and Customs may require and take securities in respect of interim duty that may become payable if the officer of Customs is satisfied that it is necessary to do so to prevent material injury to industry. This is intended to protect local manufacturers by applying securities to goods under review while the review is being conducted. |
| Item 37 | Subsection 269ZZG(2) Insert | Currently, the paragraph reads: "Nothing in subsection (1) prevents the Review Officer from seeking further particulars from an applicant within that period. This amendment adds "including new or updated information that reasonably could not have been provided earlier". |
| Item 38 | Subsection 269ZZK(6) Add | This amendment adds to the definition of 'relevant information' under a review by the Review Officer, to include new or updated information to be that reasonably could not have been provided earlier, and information and analysis provided by persons with expertise in the relevant industry or related industries. |
| Item 39 | Subparagraph 269ZZL(2)(a)(i) Repeal and substitute | If the Minister accepts the recommendation from the Review Officer to require the CEO to reinvestigate a finding or findings, this amendment requires that the Minister must, in writing, require the CEO to make further investigation and have regard to the information from the Review Officer as well as any new or updated information that is subsequently provided by an interested party that reasonably could not have been provided earlier. |
| Item 40 | Subsection 269ZZQ(1) Insert | Allows applicants for review to provide new or updated information that reasonably could not have been provided earlier. Many stakeholders have advised that the Review Officer only looks at evidence provided during the initial investigation and this limits their case. Rather, by being able to provide new or updated information they may be able to further substantiate their case against the alleged dumped goods. |
| Item 41 | Section 269ZZQ Insert | Inserts a provision that, in conducting a review, the Review officer must consult with persons with expertise in the relevant Australian industry and related industries. And have regard to any information or analysis provided by persons with expertise in the relevant Australian industry and related industries. |
| Item 42 | Subsection 269ZZS(3) Repeal and substitute | This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries. Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision". |
| Item 43 | Subsection 269ZZT(4) Repeal and substitute | This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries. Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision". |
| Item 44 | Subsection 269ZZU(3) Repeal and substitute | In reviewing a negative preliminary decision, this amendment says that the Review Officer may consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries. Currently, the paragraph only says the Review Officer must have regard to information that was before the CEO when the CEO made the reviewable decision. |
| Item 45 | Subsection 269ZZUA(5) Repeal and substitute | This amendment enables the Review Officer to consider information that was before the CEO during the initial investigation, any new or updated information that reasonably could not have been provided earlier and any information or analysis provided by persons with expertise in the relevant Australian industry and related industries. Currently, the paragraph reads: "In making a decision…the Review officer must have regard only to information that was before the CEO when the CEO made the reviewable decision". |
| Item 46 | Section 269ZZUA Insert | - Inserts the provision that if an application makes an application for a review of a negative prima facie decision or a termination decision and the Review Officer is considering the application, the Review officer may make a Review Officer CEO decision affirmative determination, and give notice of that determination. - Customs may then require and take securities that become payable if it is satisfied that it is necessary to do so t prevent material injury to an Australian industry while the review is ongoing and until the Minister makes a decision. This means that securities can be collected from the importer of the alleged goods as soon as a Review by the Review Officer has been initiated. This is intended to protect local manufacturers while a review is ongoing. |
| Item 47 | Subsection 273GA(1) Add | This amendment allows that a decision of the CEO, the Minister or the Review Officer may be applied to the Administrative Appeals Tribunal for review. |