Part XVB—Special provisions relating to anti‑dumping duties
269SM Overview of Part
(1) This Part deals with the taking of anti‑dumping measures in respect of goods whose importation into Australia involves a dumping or countervailable subsidisation of those goods that injures, or threatens to injure, Australian industry. Those measures might consist of the publication of a dumping duty notice or a countervailing duty notice or the acceptance of an undertaking on conditions that make it unnecessary to publish such a notice.
(2) If a notice is published, that notice creates a liability under the Dumping Duty Act, in relation to any goods to which the notice extends, to pay a special duty of customs on their importation into Australia and, pending assessment of that special duty, to pay interim duty.
(2A) Division 1A deals with the establishment of the Anti‑Dumping Commission and the Commissioner.
(3) Divisions 1, 2 and 3 deal with the preliminary and procedural matters leading to a Ministerial decision to publish or not to publish a dumping duty notice or a countervailing duty notice or to accept an undertaking instead of publishing such a notice.
(4) Division 4 allows a person who has been required to pay interim duty to seek an assessment of duty payable under the Dumping Duty Act and reconciles interim duty paid by that person with duty as so assessed.
(5) Division 5 deals with the rights of persons, periodically, on the basis of changed circumstances, to seek review by the Minister of decisions to publish dumping duty notices or countervailing duty notices or to accept undertakings.
(5A) Division 5A deals with the rights of persons to ask the Commissioner to conduct an anti‑circumvention inquiry in relation to certain dumping duty notices or countervailing duty notices.
(6) Division 6 deals with the rights of new exporters to seek an early review by the Minister of decisions to publish dumping duty notices or countervailing duty notices.
(7) Division 6A ensures that interested parties are informed of the impending expiration of anti‑dumping measures and allows them to seek continuation of those measures.
(8) Division 7 deals with procedural and evidentiary matters that are relevant both to applications for the taking of anti‑dumping measures and for the various review procedures after such measures are taken.
(9) Divisions 8 and 9 establish an independent panel, the Review Panel, and provide for the Panel to review a range of Ministerial decisions (including decisions to publish or not to publish dumping duty notices or countervailing duty notices) and also a range of decisions made by the Commissioner.
Division 1A—Anti‑Dumping Commission and Commissioner
Subdivision A—Preliminary
269SMA What this Division is about
• This Division establishes the Anti‑Dumping Commission within the Department.
• There is to be a Commissioner of the Anti‑Dumping Commission. The Commissioner has functions and powers under this Part.
• The Commissioner is to be assisted by APS employees in the Department.
Subdivision B—Anti‑Dumping Commission
269SMB Establishment
(1) The Anti‑Dumping Commission that was established by this section (as in force before the transfer day) continues in existence, by force of this section, within the Department.
(2) In this section:
transfer day means the day Schedule 1 to the Customs Amendment (Anti‑Dumping Commission Transfer) Act 2013 commenced.
269SMC Constitution of the Anti‑Dumping Commission
The Anti‑Dumping Commission consists of:
(a) the Commissioner; and
(b) the staff assisting the Commissioner as mentioned in subsection 269SMQ(1).
269SMD Function of the Anti‑Dumping Commission
The Anti‑Dumping Commission’s function is to assist the Commissioner in the performance of his or her functions or the exercise of his or her powers.
269SME Anti‑Dumping Commission has privileges and immunities of the Crown
The Anti‑Dumping Commission has the privileges and immunities of the Crown in right of the Commonwealth.
Subdivision C—Commissioner
269SMF Establishment
(1) There is to be a Commissioner of the Anti‑Dumping Commission.
(2) The Commissioner has the powers and functions conferred or imposed on him or her by this Act or any other law.
269SMG Powers of Commissioner
The Commissioner has the power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
269SMH Appointment
(1) The Commissioner is to be appointed by the Minister by written instrument.
(2) The Commissioner may be appointed on a full‑time or part‑time basis.
269SMI Term of appointment
The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
269SMJ Acting Commissioner
The Minister may appoint an individual to act as the Commissioner:
(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules that apply to acting appointments.
269SMK Terms and conditions of appointment
(1) The Commissioner holds office on such terms and conditions as are determined in writing by the Minister.
(2) The office of Commissioner is not a public office for the purposes of Part II of the Remuneration Tribunal Act 1973.
269SML Disclosure of interests
(1) A disclosure by the Commissioner under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.
(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the Commissioner is taken not to have complied with section 29 of that Act if the Commissioner does not comply with subsection (1) of this section.
269SMM Outside employment
Full‑time Commissioner
(1) If the Commissioner is appointed on a full‑time basis, he or she must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
Part‑time Commissioner
(2) If the Commissioner is appointed on a part‑time basis, he or she must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.
269SMN Resignation
(1) The Commissioner may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
269SMO Termination of appointment
(1) The Minister may terminate the appointment of the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; or
(d) the Commissioner is appointed on a full‑time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see subsection 269SMM(1)); or
(e) the Commissioner is appointed on a part‑time basis and engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties (see subsection 269SMM(2)).
Subdivision D—Staff assisting the Commissioner
269SMQ Staff
(1) The staff assisting the Commissioner are to be APS employees in the Department and made available for the purpose by the Secretary of the Department.
(2) When performing services for the Commissioner under this section, a person is subject to the directions of the Commissioner.
Subdivision E—Delegation
269SMR Delegation
(1) The Commissioner may, by writing, delegate any of the Commissioner’s functions or powers under this Part to a Commission staff member.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any written directions of the Commissioner.
Subdivision F—Form and manner of applications
269SMS Form and manner of applications
(1) The Commissioner may, by writing, approve a form for the purposes of a provision of this Part.
(2) The Commissioner may, by writing, approve the manner of lodging an application under a provision of this Part.
(3) The Commissioner may, by writing, approve the manner of withdrawing, under subsection 269TB(3), an application lodged under subsection 269TB(1) or (2).
Subdivision G—Disclosure of information
269SMT Disclosure of information
(1) The Commissioner, or a Commission staff member, may disclose information (including personal information) obtained under this Part or the Dumping Duty Act, or an instrument under this Part or the Dumping Duty Act, to an officer of Customs for the purposes of a Customs Act.
Interaction with the Privacy Act 1988
(2) For the purposes of the Privacy Act 1988, the disclosure of personal information under subsection (1) is taken to be a disclosure that is authorised by this Act.
Definition
(3) In this section:
personal information has the same meaning as in the Privacy Act 1988.
Division 1—Definitions and role of Minister
269SN What this Division is about
This Division deals with preliminary matters. The Division principally:
• sets out essential definitions and interpretations;
• provides the basis for determining various factors (such as normal value, export price and non‑injurious price) necessary to decide whether dumping or countervailable subsidisation has occurred;
• sets out the criteria for the use of those factors in so deciding;
• provides the basis for determining whether dumping or subsidisation is causing material injury to Australian industry;
• identifies circumstances in which the Part does not apply;
• empowers the Minister to direct the Commissioner in relation to the Commissioner’s powers and duties.
269T Definitions
(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 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 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 under 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.
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), (d) or (f) 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; or
(f) if the goods are taken from parts beyond the seas to an Australian offshore electricity installation or are goods on board an overseas offshore electricity installation at the time when it is installed in the Commonwealth offshore area—the beneficial owner of the goods at the time when they are imported into Australia; or
(g) if the goods are an overseas offshore electricity installation that becomes installed in the Commonwealth offshore 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 not 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 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).
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.
(1A) The Minister may make a legislative instrument for the purposes of the definition of compliance period in subsection (1).
(1B) The Minister may, by legislative instrument, prescribe kinds of enterprises for the purposes of the definition of small‑medium enterprise in subsection (1).
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 exporter or to the country of export in negotiations relating to the acceptability of the undertaking.
(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.
(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:
where:
P1 , P2 ... Pn means the price, value, cost or amount, per unit, in respect of the goods in the respective transactions during the period.
Q1 , Q2 ... Qn means the number of units of the goods involved in each of the respective transactions.
(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.
(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.
(6) Sundays and public holidays shall, notwithstanding the definition of days in section 4 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.
269TAAA Anti‑dumping measures not to apply to New Zealand originating goods
This Part, so far as it relates to duty that may become payable under section 8 or 9 of the Dumping Duty Act, does not apply to goods that are New Zealand originating goods under Division 1E of Part VIII of this Act.
269TAAB Member countries, developing countries and special developing countries
(1) The Minister may certify that a particular country is, or was, during a specified period or on a specified day:
(a) a member country of the World Trade Organization; or
(b) a developing country, whether a member country or not; or
(c) a special developing country within the meaning of subsection (2).
(2) For the purposes of subsection (1), a country is, or was, during a specified period or on a specified day, a special developing country if:
(a) it is or was, during that period or on that day, a developing country; and
(b) it is or was, during that period or on that day:
(i) a least developed country, whether a member country or not; or
(ii) a member country that has eliminated and not restored export subsidies; or
(iii) a member country referred to in paragraph (b) of Annex VII of the Agreement on Subsidies and Countervailing Measures having a gross national product of less than $US1,000 per annum per head of population.
(3) For all purposes of this Part and in all proceedings, a certificate under subsection (1) is conclusive evidence of the matters certified, except so far as the contrary is established.
269TAAC Definition—countervailable subsidy
(1) For the purposes of this Part, a subsidy is a countervailable subsidy if it is specific.
(2) Without limiting the generality of the circumstances in which a subsidy is specific, a subsidy is specific:
(a) if, subject to subsection (3), access to the subsidy is explicitly limited to particular enterprises; or
(b) if, subject to subsection (3), access is limited to particular enterprises carrying on business within a designated geographical region that is within the jurisdiction of the subsidising authority; or
(c) if the subsidy is contingent, in fact or in law, and whether solely or as one of several conditions, on export performance; or
(d) if the subsidy is contingent, whether solely or as one of several conditions, on the use of domestically produced or manufactured goods in preference to imported goods.
(3) Subject to subsection (4), a subsidy is not specific if:
(a) eligibility for, and the amount of, the subsidy are established by objective criteria or conditions set out in primary or subordinate legislation or other official documents that are capable of verification; and
(b) eligibility for the subsidy is automatic; and
(c) those criteria or conditions are neutral, do not favour particular enterprises over others, are economic in nature and are horizontal in application; and
(d) those criteria or conditions are strictly adhered to in the administration of the subsidy.
(4) The Minister may, having regard to:
(a) the fact that the subsidy program benefits a limited number of particular enterprises; or
(b) the fact that the subsidy program predominantly benefits particular enterprises; or
(c) the fact that particular enterprises have access to disproportionately large amounts of the subsidy; or
(d) the manner in which a discretion to grant access to the subsidy has been exercised;
determine that the subsidy is specific.
(5) In making a determination under subsection (4), the Minister must take account of:
(a) the extent of diversification of economic activities within the jurisdiction of the subsidising authority; and
(b) the length of time during which the subsidy program has been in operation.
269TAACA Determination of countervailable subsidy if non‑cooperation by relevant entities
(1) If:
(a) one of the following applies:
(i) there is an investigation under this Part in relation to whether a countervailing duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a countervailing duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a countervailing duty notice; and
(b) the Commissioner is satisfied that an entity covered by subsection (2):
(i) has not given the Commissioner information the Commissioner considers to be relevant to the investigation, review or inquiry within a period the Commissioner considers to be reasonable; or
(ii) has significantly impeded the investigation, review or inquiry;
then, in relation to the investigation, review or inquiry, in determining whether a countervailable subsidy has been received in respect of particular goods, or in determining the amount of a countervailable subsidy in respect of particular goods, the Commissioner or the Minister:
(c) may act on the basis of all the facts available to the Commissioner or the Minister (as the case may be); and
(d) may make such assumptions as the Commissioner or the Minister (as the case may be) considers reasonable.
(2) For the purposes of paragraph (1)(b), the entities are as follows:
(a) any person who is or is likely to be directly concerned with the importation or exportation into Australia of goods to which the investigation, review or inquiry relates or who has been or is likely to be directly concerned with the importation or exportation into Australia of like goods;
(b) the government of the country of export or country of origin:
(i) of goods to which the investigation, review or inquiry relates 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.
269TAAD Ordinary course of trade
(1) If the Minister is satisfied, in relation to goods exported to Australia:
(a) that like goods are sold in the country of export in sales that are arms length transactions in substantial quantities during an extended period:
(i) for home consumption in the country of export; or
(ii) for exportation to a third country;
at a price that is less than the cost of such goods; and
(b) that it is unlikely that the seller of the goods will be able to recover the cost of such goods within a reasonable period;
the price paid for the goods referred to in paragraph (a) is taken not to have been paid in the ordinary course of trade.
(2) For the purposes of this section, sales of goods at a price that is less than the cost of such goods are taken to have occurred in substantial quantities during an extended period if the volume of sales of such goods at a price below the cost of such goods over that period is not less than 20% of the total volume of sales over that period.
(3) Costs of goods are taken to be recoverable within a reasonable period of time if, although the selling price of those goods at the time of their sale is below their cost at that time, the selling price is above the weighted average cost of such goods over the investigation period.
(4) The cost of goods is worked out by adding:
(a) the amount determined by the Minister to be the cost of production or manufacture of those goods in the country of export; and
(b) the amount determined by the Minister to be the administrative, selling and general costs associated with the sale of those goods.
(5) Amounts determined by the Minister for the purposes of paragraphs (4)(a) and (b) must be worked out in such manner, and taking account of such factors, as the regulations provide in respect of those purposes.
269TAA Arms length transactions
(1) For the purposes of this Part, a purchase or sale of goods shall not be treated as an arms length transaction if:
(a) there is any consideration payable for or in respect of the goods other than their price; or
(b) the price appears to be influenced by a commercial or other relationship between the buyer, or an associate of the buyer, and the seller, or an associate of the seller; or
(c) in the opinion of the Minister the buyer, or an associate of the buyer, will, subsequent to the purchase or sale, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or any part of the price.
(1A) For the purposes of paragraph (1)(c), the Minister must not hold the opinion referred to in that paragraph because of a reimbursement in respect of the purchase or sale if the Minister is of the opinion that the purchase or sale will remain an arms length transaction in spite of the payment of that reimbursement, having regard to any or all of the following matters:
(a) any agreement, or established trading practices, in relation to the seller and the buyer, in respect of the reimbursement;
(b) the period for which such an agreement or practice has been in force;
(c) whether or not the amount of the reimbursement is quantifiable at the time of the purchase or sale.
(2) Without limiting the generality of subsection (1), where:
(a) goods are exported to Australia otherwise than by the importer and are purchased by the importer from the exporter (whether before or after exportation) for a particular price; and
(b) the Minister is satisfied that the importer, whether directly or through an associate or associates, sells those goods in Australia (whether in the condition in which they were imported or otherwise) at a loss;
the Minister may, for the purposes of paragraph (1)(c), treat the sale of those goods at a loss as indicating that the importer or an associate of the importer will, directly or indirectly, be reimbursed, be compensated or otherwise receive a benefit for, or in respect of, the whole or a part of the price.
(3) In determining, for the purposes of subsection (2), whether goods are sold by an importer at a loss, the Minister shall have regard to:
(a) the amount of the price paid or to be paid for the goods by the importer; and
(b) such other amounts as the Minister determines to be costs necessarily incurred in the importation and sale of the goods; and
(c) the likelihood that the amounts referred to in paragraphs (a) and (b) will be able to be recovered within a reasonable time; and
(d) such other matters as the Minister considers relevant.
(4) For the purposes of this Part, 2 persons shall be deemed to be associates of each other if, and only if:
(a) both being natural persons:
(i) they are members of the same family; or
(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;
(b) both being bodies corporate:
(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate); or
(ii) both of them together control, directly or indirectly, a third body corporate; or
(iii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them; or
(c) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate); or
(d) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or
(e) they are members of the same partnership.
Note: In relation to the reference to member of a family in subparagraph (4)(a)(i), see also section 4AAA.
269TAB Export price
(1) For the purposes of this Part, the export price of any goods exported to Australia is:
(a) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was an arms length transaction;
the price paid or payable for the goods by the importer, other than any part of that price that represents a charge in respect of the transport of the goods after exportation or in respect of any other matter arising after exportation; or
(b) where:
(i) the goods have been exported to Australia otherwise than by the importer and have been purchased by the importer from the exporter (whether before or after exportation); and
(ii) the purchase of the goods by the importer was not an arms length transaction; and
(iii) the goods are subsequently sold by the importer, in the condition in which they were imported, to a person who is not an associate of the importer;
the price at which the goods were so sold by the importer to that person less the prescribed deductions; or
(c) in any other case—the price that the Minister determines having regard to all the circumstances of the exportation.
(2) A reference in paragraph (1)(b) to prescribed deductions in relation to a sale of goods that have been exported to Australia shall be read as a reference to:
(a) any duties of Customs or sales tax paid or payable on the goods; and
(b) any costs, charges or expenses arising in relation to the goods after exportation; and
(c) the profit, if any, on the sale by the importer or, where the Minister so directs, an amount calculated in accordance with such rate as the Minister specifies in the direction as the rate that, for the purposes of paragraph (1)(b), is to be regarded as the rate of profit on the sale by the importer.
(2A) If an export price of goods exported to Australia is being ascertained for the purposes of conducting a review of anti‑dumping measures under Division 5, the price may, despite subsection (1), be determined by the Minister in accordance with subsection (2B) if:
(a) the price is being ascertained in relation to an exporter of those goods (whether the review is of the measures as they affect a particular exporter of those goods, or as they affect exporters of those goods generally); and
(b) the Minister determines that there is insufficient or unreliable information to ascertain the price due to an absence or low volume of exports of those goods to Australia by that exporter having regard to the following:
(i) previous volumes of exports of those goods to Australia by that exporter;
(ii) patterns of trade for like goods;
(iii) factors affecting patterns of trade for like goods that are not within the control of the exporter.
Note: If there is an absence of exports of those goods to Australia by that exporter, the Minister may deem such exports to have taken place for the purposes of ascertaining an export price: see subsection (2C).
(2B) For the purposes of subsection (2A), the export price of those goods is the price determined by the Minister to be the export price, having regard to any of the following:
(a) the export price for the goods exported to Australia by the exporter established in accordance with subsection (1) of this section for a decision of a kind mentioned in subsection (2D);
(b) the price paid or payable for like goods sold by the exporter in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country;
(c) the export price for like goods exported to Australia from the country of export by another exporter or exporters established in accordance with subsection (1) of this section for a decision mentioned in subsection (2D).
(2C) For the purposes of conducting the review of anti‑dumping measures under Division 5, if there is an absence of exports of those goods to Australia by the exporter, the Minister may deem such exports to have occurred for the purposes of applying subsections (2A) and (2B) of this section.
(2D) For the purposes of paragraphs (2B)(a) and (c), the decisions are the following:
(a) deciding to publish a notice under any of the following provisions:
(i) subsection 269TG(1) or (2) (dumping duties);
(ii) subsection 269TJ(1) or (2) (countervailing duties);
(iii) subsection 269ZDB(1) (reviews of anti‑dumping measures);
(iv) subsection 269ZDBH(1) (anti‑circumvention inquiries);
(v) subsection 269ZG(3) (accelerated review);
(vi) subsection 269ZHG(1) (continuation of anti‑dumping measures);
(b) any other decision under this Act of a kind prescribed by the regulations.
(2E) For the purposes of paragraph (2B)(c), the decision must be a decision made during the period:
(a) beginning 2 years before the day the Commissioner published notice of the review under subsection 269ZC(4), (5) or (6); and
(b) ending on the day notice of the review is published under subsection 269ZDB(1).
(2F) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2B)(b), the Minister may have regard to the following matters:
(a) whether the volume of trade from the country of export to the third country is similar to the volume of trade from the country of export to Australia;
(b) whether the nature of the trade in goods concerned between the country of export and the third country is similar to the nature of trade between the country of export and Australia.
(2G) If the export price of goods exported to Australia has been ascertained under subsection (2B), the export price may be subject to such adjustments that the Minister determines are necessary to reflect what the export price would have been had there not been an absence or low volume of exports, including:
(a) adjustments due to exports (on which the export price is based) relating to earlier times; or
(b) adjustments due to exports (on which the export price is based) relating to not identical goods.
(3) Where the Minister is satisfied that sufficient information has not been furnished, or is not available, to enable the export price of goods to be ascertained under the preceding subsections, the export price of those goods shall be such amount as is determined by the Minister having regard to all relevant information.
(4) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable.
(5) Paragraphs (1)(a) and (b) apply in relation to a purchase of goods by an importer from an exporter whether or not the importer and exporter are associates of each other.
(6) For the purposes of paragraphs (1)(a) and (2B)(b), the reference in those paragraphs to the price paid or payable for goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of that transaction.
269TAC Normal value of goods
(1) Subject to this section, for the purposes of this Part, the normal value of any goods exported to Australia is the price paid or payable for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter or, if like goods are not so sold by the exporter, by other sellers of like goods.
(1A) For the purposes of subsection (1), the reference in that subsection to the price paid or payable for like goods is a reference to that price after deducting any amount that is determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of the sales.
(2) Subject to this section, where the Minister:
(a) is satisfied that:
(i) because of the absence, or low volume, of sales of like goods in the market of the country of export that would be relevant for the purpose of determining a price under subsection (1); or
(ii) because the situation in the market of the country of export is such that sales in that market are not suitable for use in determining a price under subsection (1);
the normal value of goods exported to Australia cannot be ascertained under subsection (1); or
(b) is satisfied, in a case where like goods are not sold in the ordinary course of trade for home consumption in the country of export in sales that are arms length transactions by the exporter, that it is not practicable to obtain, within a reasonable time, information in relation to sales by other sellers of like goods that would be relevant for the purpose of determining a price under subsection (1);
the normal value of the goods for the purposes of this Part is:
(c) except where paragraph (d) applies, the sum of:
(i) such amount as the Minister determines to be the cost of production or manufacture of the goods in the country of export; and
(ii) on the assumption that the goods, instead of being exported, had been sold for home consumption in the ordinary course of trade in the country of export—such amounts as the Minister determines would be the administrative, selling and general costs associated with the sale and the profit on that sale; or
(d) if the Minister directs that this paragraph applies—the price determined by the Minister to be the price paid or payable for like goods sold in the ordinary course of trade in arms length transactions for exportation from the country of export to a third country determined by the Minister to be an appropriate third country, other than any amount determined by the Minister to be a reimbursement of the kind referred to in subsection 269TAA(1A) in respect of any such transactions.
(3) The price determined under paragraph (2)(d) is a price that the Minister determines, having regard to the quantity of like goods sold as described in paragraph (2)(d) at that price, is representative of the price paid in such sales.
(3A) The Minister is not required to consider working out the normal value of goods under paragraph (2)(d) before working out the normal value of goods under paragraph (2)(c).
(4) Subject to subsections (6) and (8), where the Minister is satisfied that it is inappropriate to ascertain the normal value of goods in accordance with the preceding subsections because the Government of the country of export:
(a) has a monopoly, or substantial monopoly, of the trade of the country; and
(b) determines or substantially influences the domestic price of goods in that country;
the normal value of the goods for the purposes of this Part is to be a value ascertained in accordance with whichever of the following paragraphs the Minister determines having regard to what is appropriate and reasonable in the circumstances of the case:
(c) a value equal to the price of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country, being sales that are arms length transactions;
(d) a value equal to the price determined by the Minister to be the price of like goods produced or manufactured in a country determined by the Minister and sold in the ordinary course of trade in arms length transactions for exportation from that country to a third country determined by the Minister to be an appropriate third country;
(e) a value equal to the sum of the following amounts ascertained in respect of like goods produced or manufactured in a country determined by the Minister and sold for home consumption in the ordinary course of trade in that country:
(i) such amount as the Minister determines to be the cost of production or manufacture of the like goods in that country;
(ii) such amounts as the Minister determines to be the administrative, selling and general costs associated with the sale of like goods in that country and the profit on that sale;
(f) a value equal to the price payable for like goods produced or manufactured in Australia and sold for home consumption in the ordinary course of trade in Australia, being sales that are arms length transactions.
(5) The price determined under paragraph (4)(d) is a price that the Minister determines, because of the quantity of like goods sold as described in paragraph (4)(d) at that price, is representative of the price paid in such sales.
(5A) Amounts determined:
(a) to be the cost of production or manufacture of goods under subparagraph (2)(c)(i) or (4)(e)(i); and
(b) to be the administrative, selling and general costs in relation to goods under subparagraph (2)(c)(ii) or (4)(e)(ii);
must be worked out in such manner, and taking account of such factors, as the regulations provide for the respective purposes of paragraphs 269TAAD(4)(a) and (b).
(5B) The amount determined to be the profit on the sale of goods under subparagraph (2)(c)(ii) or (4)(e)(ii), must be worked out in such manner, and taking account of such factors, as the regulations provide for that purpose.
(5C) Without limiting the generality of the matters that may be taken into account by the Minister in determining whether a third country is an appropriate third country for the purposes of paragraph (2)(d) or (4)(d), the Minister may have regard to the following matters:
(a) whether the volume of trade from the country of export referred to in paragraph (2)(d) or the country first‑mentioned in paragraph (4)(d) is similar to the volume of trade from the country of export to Australia; and
(b) whether the nature of the trade in goods concerned between the country of export referred to in paragraph (2)(d) or the country first‑mentioned in paragraph (4)(d) is similar to the nature of trade between the country of export and Australia.
(5D) The normal value of goods (the exported goods) is the amount determined by the Minister, having regard to all relevant information, if the exported goods are exported to Australia and the Minister is satisfied that the country of export has an economy in transition and that at least one of the following paragraphs applies:
(a) both of the following conditions exist:
(i) the exporter of the exported goods sells like goods in the country of export;
(ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods;
(b) both of the following conditions exist:
(i) the exporter of the exported goods does not sell like goods in the country of export but others do;
(ii) market conditions do not prevail in that country in respect of the domestic selling price of those like goods;
(c) the exporter of the exported goods does not answer questions in a questionnaire given to the exporter by the Commissioner under subsection 269TC(8) within the period described in that subsection or subsection 269TC(9) for answering questions;
(d) the answers given within the period mentioned in subsection 269TC(8), or the further period mentioned in subsection 269TC(9), by the exporter of the exported goods to a questionnaire given to the exporter under subsection 269TC(8) do not provide a reasonable basis for determining that paragraphs (a) and (b) of this subsection do not apply.
Note: Subsection 269TC(8) deals with the Commissioner giving an exporter of goods to Australia a questionnaire about evidence of whether or not paragraphs (a) and (b) of this subsection apply, with a specified period of at least 30 days for the exporter to answer the questions. Under subsection 269TC(9) the Commissioner may allow the exporter a further period for answering the questions.
(5E) To be satisfied that the conditions in paragraph (5D)(a) or (b) exist, the Minister must have regard to the matters (if any) prescribed by the regulations.
(5F) Without limiting the generality of subsection (5D), for the purpose of working out, under that subsection, the amount that is to be the normal value of goods exported to Australia, the Minister may determine that amount in a manner that would be open to the Minister under paragraph (4)(c), (d), (e) or (f) if subsection (4) were applicable.
(5J) For the purposes of fulfilling Australia’s international obligations under an international agreement, regulations may be made to disapply subsection (5D) to a country.
(6) Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the normal value of goods to be ascertained under the preceding subsections (other than subsection (5D)), the normal value of those goods is such amount as is determined by the Minister having regard to all relevant information.
(7) For the purposes of this section, the Minister may disregard any information that he or she considers to be unreliable.
(7A) The application of subsection (5D) to goods that are exported to Australia from a particular country does not preclude the application of other provisions of this section (other than subsections (4) and (5)) to other goods that are exported to Australia from that country.
(8) Where the normal value of goods exported to Australia is the price paid or payable for like goods and that price and the export price of the goods exported:
(a) relate to sales occurring at different times; or
(b) are not in respect of identical goods; or
(c) are modified in different ways by taxes or the terms or circumstances of the sales to which they relate;
that price paid or payable for like goods is to be taken to be such a price adjusted in accordance with directions by the Minister so that those differences would not affect its comparison with that export price.
(9) Where the normal value of goods exported to Australia is to be ascertained in accordance with paragraph (2)(c) or (4)(e), the Minister must make such adjustments, in determining the costs to be determined under that paragraph, as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods.
(10) Where:
(a) the actual country of export of goods exported to Australia is not the country of origin of the goods; and
(b) the Minister is of the opinion that the normal value of the goods should be ascertained for the purposes of this Part as if the country of origin were the country of export;
he or she may direct that the normal value of the goods is to be so ascertained.
(11) For the purposes of subsection (10), the country of origin of goods is:
(a) in the case of unmanufactured raw products—the country of which they are products; or
(b) in any other case—the country in which the last significant process in the manufacture or production of the goods was performed.
(14) If:
(a) application is made for a dumping duty notice; and
(b) goods the subject of the application are exported to Australia; but
(c) the volume of sales of like goods for home consumption in the country of export by the exporter or another seller of like goods is less than 5% of the volume of goods the subject of the application that are exported to Australia by the exporter;
the volume of sales referred to in paragraph (c) is taken, for the purposes of paragraph (2)(a), to be a low volume unless the Minister is satisfied that it is still large enough to permit a proper comparison for the purposes of assessing a dumping margin under section 269TACB.
269TACAA Sampling
(1) If:
(a) one of the following applies:
(i) there is an investigation under this Part in relation to whether a dumping duty notice or countervailing duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a dumping duty notice or countervailing duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice or countervailing duty notice; and
(b) the number of exporters from a particular country of export in relation to the investigation, review or inquiry is so large that it is not practicable to examine the exports of all of those exporters;
then the investigation, review or inquiry may be carried out, and findings may be made, on the basis of information obtained from an examination of a selected number of those exporters:
(c) who constitute a statistically valid sample of those exporters; or
(d) who are responsible for the largest volume of exports to Australia that can reasonably be examined.
(2) If information is submitted by an exporter not initially selected under subsection (1) for the purposes of an investigation, review or inquiry, the investigation, review or inquiry must extend to that exporter unless to so extend it would prevent its timely completion.
269TACAB Dumping duty notice—export prices and normal values for different categories of exporters
Uncooperative exporters
(1) If one of the following applies:
(a) there is an investigation under this Part in relation to whether a dumping duty notice should be published;
(b) there is a review under Division 5 in relation to the publication of a dumping duty notice;
(c) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice;
then:
(d) if the export price of goods for an uncooperative exporter is to be worked out in relation to the investigation, review or inquiry—that export price is to be worked out under subsection 269TAB(3); and
(e) if the normal value of goods for an uncooperative exporter is to be worked out in relation to the investigation, review or inquiry—that normal value is to be worked out under subsection 269TAC(6).
Residual exporters
(2) If:
(a) one of the following applies:
(i) there is an investigation under this Part in relation to whether a dumping duty notice should be published;
(ii) there is a review under Division 5 in relation to the publication of a dumping duty notice;
(iii) there is an inquiry under Division 6A in relation to the continuation of a dumping duty notice; and
(b) the investigation, review or inquiry is carried out on the basis of information obtained from an examination of a selected number of exporters as mentioned in subsection 269TACAA(1);
then:
(c) if the export price of goods for a residual exporter is to be worked out in relation to the investigation, review or inquiry—that export price must not be less than the weighted average of export prices for like goods of cooperative exporters from the same country of export; and
(d) if the normal value of goods for a residual exporter is to be worked out in relation to the investigation, review or inquiry—that normal value must not exceed the weighted average of normal values for like goods of cooperative exporters from the same country of export.
(3) To the extent that subsection (2) applies in relation to an investigation, the weighted average of export prices, and the weighted average of normal values, of the cooperative exporters must not include any export price or normal value if, in a comparison under section 269TACB involving that export price or normal value, the Minister has determined:
(a) that there is no dumping; or
(b) that the dumping margin, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%.
269TACA Non‑injurious price
The non‑injurious price of goods exported to Australia is the minimum price necessary:
(a) if the goods are the subject of, or of an application for, a dumping duty notice under subsection 269TG(1) or (2)—to prevent the injury, or a recurrence of the injury, or to remove the hindrance, referred to in paragraph 269TG(1)(b) or (2)(b); or
(b) if the goods are the subject of, or of an application for, a third country dumping duty notice under subsection 269TH(1) or (2)—to prevent the injury, or a recurrence of the injury, referred to in paragraph 269TH(1)(b) or (2)(b); or
(c) if the goods are the subject of, or of an application for, a countervailing duty notice under subsection 269TJ(1) or (2)—to prevent the injury, or a recurrence of the injury, or to remove the hindrance, referred to in paragraph 269TJ(1)(b) or (2)(b); or
(d) if the goods are the subject of, or of an application for, a third country countervailing duty notice under subsection 269TK(1) or (2)—to prevent the injury, or a recurrence of the injury, referred to in paragraph 269TK(1)(b) or (2)(b).
269TACB Working out whether dumping has occurred and levels of dumping
(1) If:
(a) application is made for a dumping duty notice; and
(b) export prices in respect of goods the subject of the application exported to Australia during the investigation period have been established in accordance with section 269TAB; and
(c) corresponding normal values in respect of like goods during that period have been established in accordance with section 269TAC;
the Minister must determine, by comparison of those export prices with those normal values, whether dumping has occurred.
(2) In order to compare those export prices with those normal values, the Minister may, subject to subsection (3):
(a) compare the weighted average of export prices over the whole of the investigation period with the weighted average of corresponding normal values over the whole of that period; or
(aa) use the method of comparison referred to in paragraph (a) in respect of parts of the investigation period as if each of these parts were the whole of the investigation period; or
(b) compare the export prices determined in respect of individual transactions over the whole of the investigation period with the corresponding normal values determined over the whole of that period; or
(c) use:
(i) the method of comparison referred to in paragraph (a) in respect of a part or parts of the investigation period as if the part or each of these parts were the whole of the investigation period; and
(ii) the method of comparison referred to in paragraph (b) in respect of another part or other parts of the investigation period as if that other part or each of these other parts were the whole of the investigation period.
(2A) If paragraph (2)(aa) or (c) applies:
(a) each part of the investigation period referred to in the paragraph must not be less than 1 month; and
(b) the parts of the investigation period as referred to in paragraph (2)(aa), or as referred to in subparagraphs (2)(c)(i) and (ii), must together comprise the whole of the investigation period.
(3) If the Minister is satisfied:
(a) that the export prices differ significantly among different purchasers, regions or periods; and
(b) that those differences make the methods referred to in subsection (2) inappropriate for use in respect of a period constituting the whole or a part of the investigation period;
the Minister may, for that period, compare the respective export prices determined in relation to individual transactions during that period with the weighted average of corresponding normal values over that period.
(4) If, in a comparison under subsection (2), the Minister is satisfied that the weighted average of export prices over a period is less than the weighted average of corresponding normal values over that period:
(a) the goods exported to Australia during that period are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that period is the difference between those weighted averages.
(4A) To avoid doubt, a reference to a period in subsection (4) includes a reference to a part of the investigation period.
(5) If, in a comparison under subsection (2), the Minister is satisfied that an export price in respect of an individual transaction during the investigation period is less than the corresponding normal value:
(a) the goods exported to Australia in that transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods and that transaction is the difference between that export price and that normal value.
(6) If, in a comparison under subsection (3), the Minister is satisfied that the export prices in respect of particular transactions during the investigation period are less than the weighted average of corresponding normal values during that period:
(a) the goods exported to Australia in each such transaction are taken to have been dumped; and
(b) the dumping margin for the exporter concerned in respect of those goods is the difference between each relevant export price and the weighted average of corresponding normal values.
(10) Any comparison of export prices, or weighted average of export prices, with any corresponding normal values, or weighted average of corresponding normal values, must be worked out in respect of similar units of goods, whether determined by weight, volume or otherwise.
269TACC Working out whether a financial contribution or income or price support confers a benefit
(1) Subject to subsections (2) and (3), the question whether a financial contribution or income or price support confers a benefit is to be determined by the Minister having regard to all relevant information.
(2) A direct financial payment received from any of the following is taken to confer a benefit:
(a) a government of a country;
(b) a public body of a country;
(c) a public body of which a government of a country is a member;
(d) a private body entrusted or directed by a government of a country or by such a public body to carry out a governmental function.
Guidelines for financial contributions
(3) In determining whether a financial contribution confers a benefit, the Minister must have regard to the following guidelines:
(a) the provision of equity capital from a government or body referred to in subsection (2) does not confer a benefit unless the decision to provide the capital is inconsistent with normal investment practice of private investors in the country concerned;
(b) the making of a loan by a government or body referred to in subsection (2) does not confer a benefit unless the loan requires the enterprise receiving the loan to repay a lesser amount than would be required for a comparable commercial loan which the enterprise could actually obtain;
(c) the guarantee of a loan by a government or body referred to in subsection (2) does not confer a benefit unless the enterprise receiving the guarantee is required to repay on the loan a lesser amount than would be required for a comparable commercial loan without that guarantee;
(d) the provision of goods or services by a government or body referred to in subsection (2) does not confer a benefit unless the goods or services are provided for less than adequate remuneration;
(e) the purchase of goods or services by a government or body referred to in subsection (2) does not confer a benefit unless the purchase is made for more than adequate remuneration.
(4) For the purposes of paragraphs (3)(d) and (e), the adequacy of remuneration in relation to goods or services is to be determined having regard to prevailing market conditions for like goods or services in the country where those goods or services are provided or purchased.
269TACD Amount of countervailable subsidy
(1) If the Minister is satisfied that a countervailable subsidy has been received in respect of goods, the amount of the subsidy is an amount determined by the Minister in writing.
(2) After the amount of the countervailable subsidy received in respect of goods has been worked out, the Minister must, if that subsidy is not quantified by reference to a unit of those goods determined by weight, volume or otherwise, work out how much of that amount is properly attributable to each such unit.
269TAE Material injury to industry
(1) 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.
(2) 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.
(2A) 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.
(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.
(2B) 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.
(2C) 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.
(3) 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.
269TAF Currency conversion
(1) If, for the purposes of this Part, comparison of the export prices of goods exported to Australia and corresponding normal values of like goods requires a conversion of currencies, that conversion, subject to subsection (2), is to be made using the rate of exchange on the date of the transaction or agreement that, in the opinion of the Minister, best establishes the material terms of the sale of the exported goods.
(2) If, in relation to goods exported to Australia, a forward rate of exchange is used, the Minister may, in a conversion of currencies under subsection (1), make use of that rate of exchange.
(3) If:
(a) the comparison referred to in subsection (1) requires the conversion of currencies; and
(b) the rate of exchange between those currencies has undergone a short‑term fluctuation;
the Minister may, for the purpose of that comparison, disregard that fluctuation.
(4) If:
(a) the comparison referred to in subsection (1) requires the conversion of currencies; and
(b) the Minister is satisfied that the rate of exchange between those currencies has undergone a sustained movement;
the Minister may, by notice published on the Anti‑Dumping Commission’s website, declare that this subsection applies with effect from a day specified in the notice and, if the Minister does so, the Minister may use the rate of exchange in force on that day for the purposes of that comparison during the period of 60 days starting on that day.
(5) Nothing in subsection (4) prevents the Minister specifying a day in a notice that is earlier than the day of publication of the notice if the day specified:
(a) is a day after the start of the sustained movement; and
(b) is not a day occurring within 60 days after the day specified in a prior notice.
(6) Nothing in subsection (4) prevents the Minister publishing more than one notice if a sustained movement in the rate of exchange continues for more than 60 days.
(7) The Commissioner may, if he or she considers it desirable so to do for the avoidance of doubt, specify, by notice published on the Anti‑Dumping Commission’s website, a means of establishing a rate that is taken to be, or to have been, the rate of exchange between the Australian currency and another currency or between other currencies:
(a) on a day, or during a period, preceding the day of publication of the notice; or
(b) from and including the day of publication of the notice, or an earlier day specified in the notice, until the revocation of the notice.
(8) The rate of exchange established between currencies in a notice under subsection (7) is, for the purpose of working out the amount of duty or interim duty payable on any goods exported on the day or during the period to which the rate so specified applies, the rate of exchange that applies for the purposes of this section in respect of the currencies specified in the notice.
269TAG Minister may take anti‑dumping measures on own initiative
(1) Nothing in this Part implies that the Minister cannot initiate an investigation into the need to take anti‑dumping measures in respect of goods although no application has been made under section 269TB for the taking of such measures in respect of such goods.
(2) An investigation under subsection (1) must be carried out in accordance with the Minister’s written requirements instead of the requirements set out in this Part.
(3) The Minister may, subject to subsection (4), take anti‑dumping measures as a result of the investigation as if the investigation had been carried out under this Part.
(4) The Minister must not take such anti‑dumping measures unless the Minister:
(a) has determined any matters which the Minister would be required to determine; and
(b) is satisfied of any matters of which the Minister would be required to be satisfied;
in order to take those measures if the investigation had been carried out in accordance with the requirements of the other provisions of this Part.
(5) The Minister must ensure that:
(a) his or her instructions under subsection (2) for the conduct of an investigation referred to in subsection (1); and
(b) his or her actions in taking any anti‑dumping measures as a result of such an investigation;
are consistent with Australia’s international obligations under the World Trade Organization Agreement.
(6) The anti‑dumping measures taken and any matters determined to permit the taking of those measures are to be treated, for all purposes of this Act and the Dumping Duty Act, as measures taken, and matters determined, under the relevant provisions of this Part.
269TAH Minister may delegate functions and powers to Commissioner or Commission staff members
(1) The Minister may, by signed instrument, delegate to the following any of the functions and powers of the Minister under this Part or the Dumping Duty Act:
(a) the Commissioner;
(b) a Commission staff member.
(2) However, subsection (1) does not apply to a function or power under:
(a) subsection 269TG(1) or (2), 269TH(1) or (2), 269TJ(1) or (2) or 269TK(1) or (2) of this Act; or
(b) subsection 8(5), 9(5), 10(3B) or 11(4) of the Dumping Duty Act.
269TA Minister may give directions to Commissioner in relation to powers and duties under this Part
(1) The Minister may, by legislative instrument, give to the Commissioner such directions in connection with carrying out or giving effect to the Commissioner’s powers and duties under this Part as the Minister thinks fit, and the Commissioner shall comply with any directions so given.
(2) A direction under subsection (1) shall not deal with carrying out or giving effect to the powers or duties of the Commissioner in relation to a particular consignment of goods or to like goods to goods in a particular consignment but shall deal instead with the general principles for carrying out or giving effect to the Commissioner’s powers.
Division 2—Consideration of anti‑dumping matters by the Commissioner
269TBA What this Division is about
This Division:
• sets out the requirements for making applications for the publication of dumping duty notices and countervailing duty notices;
• sets out the procedures to be followed, and the matters to be considered, by the Commissioner in conducting investigations in relation to goods covered by such applications, for the purpose of making a report to the Minister;
• empowers the Commonwealth, in certain cases, to take securities in respect of interim duty that may become payable, in order to prevent injury to Australian industry while such investigations continue;
• sets out the circumstances in which the Commissioner must terminate such investigations.
269TB Application for action under Dumping Duty Act
(1) Where:
(a) a consignment of goods:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies;
(b) there is, or may be established, an Australian industry producing like goods; and
(c) a person believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
that person may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.
(2) Where:
(a) a consignment of goods produced or manufactured in a country other than Australia:
(i) has been imported into Australia;
(ii) is likely to be imported into Australia; or
(iii) may be imported into Australia, being like goods to goods to which subparagraph (i) or (ii) applies; and
(b) there is, in a third country, an industry that produces or manufactures like goods for export to Australia; and
(c) the Government of that third country believes that there are, or may be, reasonable grounds for the publication of a dumping duty notice or a countervailing duty notice in respect of the goods in the consignment;
the Government of that third country may, by application in writing lodged with the Commissioner, request that the Minister publish that notice in respect of the goods in the consignment.
(2A) During the period after receiving an application for a dumping duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Commissioner must notify the government of the country, or of each country, whose exporters are nominated in the application.
(2B) During the period after receiving an application for a countervailing duty notice and before giving public notice under subsection 269TC(4) of a decision not to reject the application, the Commissioner must notify:
(a) the government of the country, or of each country, whose exporters are nominated in the application; and
(b) the government of any other country from which countervailable subsidies are alleged to have been received.
(2C) A notification by the Commissioner under subsection (2B) must include an invitation to consult with the Commissioner in relation to whether:
(a) any countervailable subsidies exist; and
(b) any such subsidies, if found to exist, are causing or are likely to cause material injury of a kind referred to in paragraph 269TJ(1)(b) or 269TK(1)(b);
with the aim of arriving at a mutually agreed solution.
(3) An applicant may, at any time before the Minister decides:
(a) to publish a dumping duty notice or a countervailing duty notice in respect of an exporter to whom the application extends; or
(b) to accept an undertaking from an exporter to whom the application extends or from a country to whose exporters the application extends;
by notice in writing lodged with the Commissioner, withdraw the application so far as it extends to that exporter, or to exporters exporting from that country, as the case requires.
(4) An application under subsection (1) or (2) or a notice under subsection (3) withdrawing such an application must:
(a) be in writing; and
(b) be in a form approved by the Commissioner for the purposes of this section; and
(c) contain such information as the form requires; and
(d) be signed in the manner indicated in the form; and
(e) in the case of an application under subsection (1)—be supported by a sufficient part of the Australian industry; and
(f) be lodged in the manner approved under section 269SMS.
(5) The application, or the notice withdrawing an application, is taken to have been received by the Commissioner when the application or notice is first received by a Commission staff member doing duty in relation to dumping applications.
(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 Commissioner is satisfied that persons (including the applicant) who produce or manufacture like goods in Australia and who support the application:
(a) 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
(b) account for not less than 25% of the total production or manufacture of like goods in Australia.
269TC Consideration of application
(1) The Commissioner shall, within 20 days after receiving an application under subsection 269TB(1) in respect of goods, examine the application and, if the Commissioner is not satisfied, having regard to the matters contained in the application and to any other information that the Commissioner considers relevant:
(a) that the application complies with subsection 269TB(4); or
(b) that there is, or is likely to be established, an Australian industry in respect of like goods; or
(c) that there appear to be reasonable grounds:
(i) for the publication of a dumping duty notice or a countervailing duty notice, as the case requires, in respect of the goods the subject of the application; or
(ii) for the publication of such a notice upon the importation into Australia of such goods;
he or she shall reject the application and inform the applicant, by notice in writing, accordingly.
(2) The Commissioner shall, within 20 days after receiving an application by the Government of a country under subsection 269TB(2) in respect of goods, examine the application and, if the Commissioner is not satisfied, having regard to the matters contained in the application and to any other information that the Commissioner considers relevant:
(a) that the application complies with subsection 269TB(4); or
(b) that there is a producer or manufacturer of like goods in that country who exports such goods to Australia; or
(c) that there appear to be reasonable grounds:
(i) for the publication of a dumping duty notice or a countervailing duty notice, as the case requires, in respect of the goods the subject of the application; or
(ii) for the publication of such a notice upon the importation into Australia of such goods;
he or she shall reject the application and inform the applicant, by notice in writing, accordingly.
(2A) If an applicant, after lodging an application under section 269TB, decides to give the Commissioner further information in support of that application without having been requested to do so:
(a) the information must be lodged with the Commissioner, in writing, in the manner in which applications under that section must be lodged; and
(b) the information is taken to have been received by the Commissioner when the information is first received by a Commission staff member doing duty in relation to dumping applications; and
(c) this Part has effect as if:
(i) the application had included that further information; and
(ii) the application had only been lodged when that further information was lodged; and
(iii) the application had only been received when that further information was received.
(3) Where, in accordance with subsection (1) or (2), the Commissioner rejects an application, the notice informing the applicant of that rejection:
(a) shall state the reasons why the Commissioner was not satisfied of one or more of the matters set out in that subsection; and
(b) shall inform the applicant of the applicant’s right, within 30 days of the receipt of the notice, to apply for a review of the Commissioner’s decision by the Review Panel under Division 9.
(4) If the Commissioner decides not to reject an application under subsection 269TB(1) or (2) in respect of goods, the Commissioner must give public notice of the decision:
(a) setting out particulars of goods the subject of the application; and
(b) setting out the identity of the applicant; and
(ba) setting out the countries of export known to be involved; and
(bb) if the application is for a countervailing duty notice—also setting out the countries from which countervailable subsidisation is alleged to have been received; and
(bc) setting a date, which should be the date or estimated date of publication of the notice, as the date of initiation of the investigation; and
(bd) indicating the basis on which dumping or countervailable subsidisation is alleged to have occurred; and
(be) summarising the factors on which the allegation of injury or hindrance to the establishment of an industry is based; and
(bf) indicating that a report will be made to the Minister:
(i) within 155 days after the date of initiation of the investigation; or
(ii) within such longer period as the Minister allows under section 269ZHI;
on the basis of the examination of exportations to Australia of goods the subject of the application during a period specified in the notice as the investigation period in relation to the application; and
(c) inviting interested parties to lodge with the Commissioner, within 37 days after the date of initiation of the investigation, submissions concerning the publication of the notice sought in the application; and
(d) stating that if the Commissioner, in accordance with section 269TD, makes a preliminary affirmative determination in relation to the application, he or she may apply provisional measures, including the taking of securities under section 42, in respect of interim duty that may become payable on the importation of the goods the subject of the application; and
(e) stating that:
(i) within 110 days after the date of initiation of the investigation; or
(ii) such longer period as the Minister allows under section 269ZHI;
the Commissioner, in accordance with section 269TDAA, will place on the public record a statement of the essential facts on which the Commissioner proposes to base a recommendation to the Minister; and
(f) inviting interested parties to lodge with the Commissioner, within 20 days of that statement being placed on the public record, submissions in response to that statement; and
(g) indicating the address at which, or the manner in which, submissions under paragraph (c) or (f) can be lodged; and
(h) stating that if the Minister decides to publish or not to publish a dumping duty notice or a countervailing duty notice after considering the report referred to in paragraph (bf), certain persons will have the right to seek review of that decision in accordance with Division 9.
(5) Information required to be included in the notice under subsection (4) may be included in a separate report to which the notice makes reference.
(5A) The Commissioner cannot vary the length of the investigation period.
(6) Despite the fact that a notice under this section specifies a particular period for interested parties to lodge submissions with the Commissioner, if the Commissioner is satisfied, by representation in writing by an interested party:
(a) that a longer period is reasonably required for the party to make a submission; and
(b) that allowing a longer period will be practicable in the circumstances;
the Commissioner may notify the party, in writing, that a specified further period will be allowed for the party to lodge a submission.
(7) As soon as practicable after the Commissioner decides not to reject an application under section 269TB for a dumping duty notice or a countervailing duty notice, the Commissioner must ensure that a copy of the application, or of so much of the application as is not claimed to be confidential or to constitute information whose publication would adversely affect a person’s business or commercial interests, is made available:
(a) unless paragraph (b) applies—to all persons known to be exporters of goods the subject of the application and to the government of each country of export; or
(b) if the number of persons known to be exporters of goods the subject of the application is so large that it is not practicable to provide a copy of the application, or of so much of the application as is not the subject of such a claim, to each of them—to the government of each country of export and to each relevant trade association.
(8) If the Commissioner is satisfied that a country whose exporters are nominated in an application for a dumping duty notice or a countervailing duty notice has an economy in transition, the Commissioner must, as soon as practicable after deciding not to reject the application:
(a) give each nominated exporter from such a country a questionnaire about evidence of whether or not paragraphs 269TAC(5D)(a) and (b) apply; and
(b) inform each such exporter that the exporter has a specified period of not less than 30 days for answering questions in the questionnaire; and
(c) inform each such exporter that the investigation of the application will proceed on the basis that subsection 269TAC(5D) applies to the normal value of the exporter’s goods that are the subject of the application if:
(i) the exporter does not give the answers to the Commissioner within the period; or
(ii) the exporter gives the answers to the Commissioner within the period but they do not provide a reasonable basis for determining that paragraphs 269TAC(5D)(a) and (b) do not apply.
Note: Paragraph 269TAC(5D)(a) or (b) applies if a government of the country of export significantly affects the selling price in that country of like goods to the goods that are the subject of the application.
(9) Despite the fact that, under subsection (8), the Commissioner has informed an exporter given a questionnaire that the exporter has a particular period to answer the questions in the questionnaire, if the Commissioner is satisfied, by representation in writing by the exporter:
(a) that a longer period is reasonably required for the exporter to answer the questions; and
(b) that allowing a longer period will be practicable in the circumstances;
the Commissioner may notify the exporter, in writing, that a specified further period will be allowed for the exporter to answer the questions.
(10) If, during an investigation in respect of goods the subject of an application under section 269TB, the Commissioner becomes aware of an issue as to whether a countervailable subsidy (other than one covered by the application) has been received in respect of the goods, the Commissioner may examine that issue as part of the investigation.
269TD Preliminary affirmative determinations
(1) At any time not earlier than 60 days after the date of initiation of an investigation as to whether there are sufficient grounds for the publication of a dumping duty notice, or a countervailing duty notice, in respect of goods the subject of an application under section 269TB, the Commissioner may, if he or she is satisfied:
(a) that there appears to be sufficient grounds for the publication of such a notice; or
(b) that it appears that there will be sufficient grounds for the publication of such a notice subsequent to the importation into Australia of such goods;
make a determination (a preliminary affirmative determination) to that effect.
(2) Subject to subsection (3), in deciding whether to make such a preliminary affirmative determination, the Commissioner:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by the Commissioner within 37 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the Commissioner considers relevant.
(3) The Commissioner is not obliged to have regard to any submission that is received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely consideration of the question whether or not to make a preliminary affirmative determination.
(4) If the Commissioner makes a preliminary affirmative determination:
(a) the Commissioner must give public notice of that determination; and
(b) the Commonwealth may, at the time that determination is made or at any later time during the investigation, require and take securities under section 42 in respect of interim duty that may become payable if the Commissioner is satisfied that it is necessary to do so to prevent material injury to an Australian industry occurring while the investigation continues.
(5) If the Commonwealth decides to require and take securities under subsection (4), the Commissioner must give public notice of that decision.
269TDAA Statement of essential facts in relation to investigation of application under section 269TB
(1) The Commissioner must, within 110 days after the date of initiation of an investigation arising from an application under section 269TB or such longer period as the Minister allows under section 269ZHI, place on the public record a statement of the facts (the statement of essential facts) on which the Commissioner proposes to base a recommendation to the Minister in relation to that application.
(2) Subject to subsection (3), in formulating the statement of essential facts, the Commissioner:
(a) must have regard to:
(i) the application concerned; and
(ii) any submissions concerning publication of the notice that are received by the Commissioner within 37 days after the date of initiation of the investigation; and
(b) may have regard to any other matters that the Commissioner considers relevant.
(3) The Commissioner is not obliged to have regard to a submission received by the Commissioner after the end of the period referred to in subparagraph (2)(a)(ii) if to do so would, in the Commissioner’s opinion, prevent the timely placement of the statement of essential facts on the public record.
269TDA Termination of investigations
Commissioner must terminate if all dumping margins are negligible
(1) If:
(a) application is made for a dumping duty notice; and
(b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Commissioner is satisfied that:
(i) there has been no dumping by the exporter of any of those goods; or
(ii) there has been dumping by the exporter of some or all of those goods, but the dumping margin for the exporter, or each such dumping margin, worked out under section 269TACB, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%;
the Commissioner must terminate the investigation so far as it relates to the exporter.
Commissioner must terminate if countervailable subsidisation is negligible
(2) If:
(a) application is made for a countervailing duty notice; and
(b) in an investigation, for the purposes of the application, of an exporter to Australia of goods the subject of the application, the Commissioner is satisfied that:
(i) no countervailable subsidy has been received in respect of any of those goods; or
(ii) a countervailable subsidy has been received in respect of some or all of those goods but it never, at any time during the investigation period, exceeded the negligible level of countervailable subsidy under subsection (16);
the Commissioner must terminate the investigation so far as it relates to the exporter.
Commissioner must terminate if negligible volumes of dumping are found
(3) If:
(a) application is made for a dumping duty notice; and
(b) in an investigation for the purposes of the application the Commissioner is satisfied that the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over a reasonable examination period from a particular country of export; and
(ii) that have been, or may be, dumped;
is negligible;
the Commissioner must terminate the investigation so far as it relates to that country.
What is a negligible volume of dumped goods?
(4) For the purpose of subsection (3), the total volume of goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped is taken to be a negligible volume if:
(a) when expressed as a percentage of the total Australian import volume, it is less than 3%; and
(b) subsection (5) does not apply in relation to those first‑mentioned goods.
Aggregation of volumes of dumped goods
(5) For the purposes of subsection (4), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and dumped if:
(a) the volume of such goods that have been, or may be, so exported from that country and dumped, when expressed as a percentage of the total Australian import volume, is less than 3%; and
(b) the volume of goods the subject of the application that have been, or may be, exported to Australia over that period from another country of export and dumped, when expressed as a percentage of the total Australian import volume, is also less than 3%; and
(c) the total volume of goods the subject of the application that have been, or may be, exported to Australia over that period from the country to which paragraph (a) applies, and from all countries to which paragraph (b) applies, and dumped, when expressed as a percentage of the total Australian import volume, is more than 7%.
Negligible dumping margins to count in determining volume
(6) The fact that the dumping margin, or each of the dumping margins, in relation to a particular exporter, when expressed as a percentage of the export price or weighted average of export prices used to establish that dumping margin, is less than 2%, does not prevent exports by that exporter being taken into account:
(a) in working out the total volume of goods that have been, or may be, exported from a country of export and dumped; and
(b) in aggregating, for the purposes of subsection (5), the volumes of goods that have been, or may be, exported from that country of export and other countries of export and dumped.
Commissioner must terminate if negligible volumes of countervailable subsidisation are found
(7) If:
(a) application is made for a countervailing duty notice; and
(b) in an investigation for the purposes of the application, the Commissioner is satisfied that the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia from a particular country of export during a reasonable examination period; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
is negligible;
the Commissioner must terminate the investigation so far as it relates to that country.
What is a negligible volume of subsidised goods?
(8) For the purposes of subsection (7), the total volume of goods the subject of the application for a countervailing duty notice that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been received is taken to be a negligible volume if:
(a) that country of export is not a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 3%; or
(b) that country of export is a developing country and that total volume, when expressed as a percentage of the total Australian import volume, is less than 4%;
and subsections (9), (10) and (11) do not apply in relation to those first‑mentioned goods.
Aggregation of volumes of subsidised goods from countries other than developing countries
(9) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received, if:
(a) the country of export is not a developing country; and
(b) the volume of such goods:
(i) that have been, or may be, exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 3%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another country that is not a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 3%; and
(d) the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 7%.
Aggregation of volumes of subsidised goods from developing countries
(10) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:
(a) the country of export is a developing country; and
(b) the volume of such goods:
(i) that have been, or may be, exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another country that is a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is also less than 4%; and
(d) the total volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be received;
when expressed as a percentage of the total Australian import volume, is more than 9%.
Aggregation of volumes of subsidised goods from member countries that are developing countries
(11) For the purposes of subsection (8), this subsection applies in relation to goods the subject of the application that have been, or may be, exported to Australia over a reasonable examination period from the particular country of export and in respect of which a countervailable subsidy has been, or may be, received if:
(a) the country of export is a member country and a developing country; and
(b) the volume of such goods;
(i) that have been, or may be exported to Australia over that period from that country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(c) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from another member country that is a developing country; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is less than 4%; and
(d) the volume of goods the subject of the application:
(i) that have been, or may be, exported to Australia over that period from the country to which paragraph (b) applies and from all countries to which paragraph (c) applies; and
(ii) in respect of which a countervailable subsidy has been, or may be, received;
when expressed as a percentage of the total Australian import volume, is more than 9%.
Negligible countervailable subsidies to count in determining volume
(12) The fact that the level of countervailable subsidy that has been, or may be, received in respect of goods that have been, exported, or may be exported, to Australia from a country of export is a negligible level under subsection (16) does not prevent exports from that country being taken into account:
(a) in working out the total volume of goods that have been, or may be, exported from a country of export and in respect of which a countervailable subsidy has been, or may be, payable; and
(b) in aggregating, for the purposes of subsection (9), (10) or (11), volumes of goods that have been, or may be, exported to Australia from that country and other countries and in respect of which a countervailing subsidy has been, or may be, received.
Commissioner must terminate dumping investigation if export causes negligible injury etc.
(13) Subject to subsection (13A), if:
(a) application is made for a dumping duty notice; and
(b) in an investigation, for the purposes of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the Commissioner is satisfied that the injury, if any, to an Australian industry or an industry in a third country, or the hindrance, if any, to the establishment of an Australian industry, that has been, or may be, caused by that export is negligible;
the Commissioner must terminate the investigation so far as it relates to that country.
(13A) If, in relation to the investigation referred to in subsection (13), the Commissioner, in accordance with subsection (14B), considers the cumulative effect of exportations of goods to Australia from 2 or more countries of export, then the following apply in relation to those countries:
(a) if the Commissioner is not satisfied that the injury to an Australian industry or an industry in a third country, or the hindrance to the establishment of an Australian industry, that has been, or may be, caused by those exports is negligible—subsection (13) does not apply in relation to those countries;
(b) if the Commissioner is satisfied that such injury or hindrance that has been, or may be, caused by those exports is negligible—the Commissioner must terminate the investigation so far as it relates to those countries.
Note: If the investigation also covers exports of goods from a country that was not part of the cumulation consideration because those exports did not satisfy the criteria in subsection (14B), then the Commissioner will consider whether subsection (13) applies to that country.
Commissioner must terminate countervailable subsidy investigation if export causes negligible injury
(14) Subject to subsection (14A), if:
(a) application is made for a countervailing duty notice; and
(b) in an investigation, for the purpose of the application, of goods the subject of the application that have been, or may be, exported to Australia from a particular country of export, the Commissioner is satisfied that the injury, if any, to an Australian industry or an industry in a third country that has been, or may be, caused by that export is negligible;
the Commissioner must terminate the investigation so far as it relates to that country.
(14A) If, in relation to the investigation referred to in subsection (14), the Commissioner, in accordance with subsection (14B), considers the cumulative effect of exportations of goods to Australia from 2 or more countries of export, then the following apply in relation to those countries:
(a) if the Commissioner is not satisfied that the injury to an Australian industry or an industry in a third country that has been, or may be, caused by those exports is negligible—subsection (14) does not apply in relation to those countries;
(b) if the Commissioner is satisfied that such injury that has been, or may be, caused by those exports is negligible—the Commissioner must terminate the investigation so far as it relates to those countries.
Note: If the investigation also covers exports of goods from a country that was not part of the cumulation consideration because those exports did not satisfy the criteria in subsection (14B), then the Commissioner will consider whether subsection (14) applies to that country.
Cumulative assessment of injury or hindrance
(14B) For the purpose of subsection (13A) or (14A), the Commissioner must consider the cumulative effect of exportations of goods to Australia from 2 or more countries of export if the Commissioner 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) for the purposes of subsection (13A)—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) for the purposes of subsection (13A)—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
(e) for the purposes of subsection (14A):
(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
(f) 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.
Commissioner must give public notice of termination decisions
(15) If the Commissioner decides to terminate an investigation so far as it relates to a particular exporter or country of export, the Commissioner must:
(a) give public notice of that decision; and
(b) ensure that:
(i) in the case of an exporter, a copy of the notice is sent to the applicant, the exporter and the government of the country of export; or
(ii) in the case of a country of export, a copy of the notice is sent to the applicant and the government of that country; and
(c) inform the applicant of the applicant’s right, within 30 days after the first publication of the public notice, to apply for a review of the Commissioner’s decision by the Review Panel under Division 9.
Negligible countervailable subsidisation
(16) For the purposes of this section, a countervailable subsidy received in respect of goods exported to Australia is negligible if:
(a) the country of export is not a developing country and the subsidy, when expressed as a percentage of the export price of the goods, is less than 1%; or
(b) the country of export is a developing country but not a special developing country and the subsidy, when expressed as a percentage of the export price of the goods, is not more than 2%; or
(c) the country of export is a special developing country and the subsidy, when expressed as a percentage of the export price of the goods, is not more than 3%.
Definition—reasonable examination period
(17) In this section:
reasonable examination period, in relation to an application for a dumping duty notice or a countervailing duty notice in respect of goods, means a period comprising:
(a) the whole or a substantial part of the investigation period; or
(b) any period after the end of the investigation period that is taken into account for the purpose of considering possible future importations of goods the subject of the application.
total Australian import volume, in relation to a volume of goods the subject of an application for a dumping duty notice or a countervailing duty notice that have been, or may be, exported to Australia from a particular country during a period, means the total volume of all goods the subject of the application and like goods that have been, or may be, exported to Australia from all countries during that period.
269TE Commissioner to have regard to same considerations as Minister
(1) In this section:
decision means:
(a) a decision of the Commissioner under section 269TC or 269TD; or
(b) a decision contained in a report by the Commissioner under section 269ZZL.
recommendation means:
(a) a recommendation included in a report prepared by the Commissioner under section 269TEA, 269ZDA, 269ZDBG, 269ZG or 269ZHF; or
(b) a recommendation by the Commissioner to the Minister under section 269TEB or 269X.
(2) If the Commissioner is required, in making a recommendation or decision, to determine any matter ordinarily required to be determined by the Minister under this Act or the Dumping Duty Act, the Commissioner must determine the matter:
(a) in like manner as if he or she were the Minister; and
(b) having regard to the considerations to which the Minister would be required to have regard if the Minister were determining the matter.
(3) Subsection (2) applies in respect of goods that have not been imported into Australia at the time of the Commissioner’s determination of a matter in respect of those goods as if:
(a) the Commissioner’s determination of the matter were being made after an importation of those goods into Australia; and
(b) the importation had occurred at the time of the anticipated importation of those goods into Australia.
(4) Nothing in this section implies that the determination of a matter by the Commissioner affects the power of the Minister to make a final determination in respect of that matter for the purposes of the Dumping Duty Act.
269TEA Report to Minister concerning publication of notices under this Part
(1) If:
(a) application has been made under section 269TB for publication of a dumping duty notice or a countervailing duty notice; and
(b) the Commissioner has initiated an investigation in respect of the application under section 269TC;
the Commissioner must, after holding such an investigation and within 155 days after the date of initiation of the investigation or such longer period as the Minister allows under section 269ZHI, give the Minister a report in respect of the goods the subject of the application that:
(c) recommends whether any such notice should be published and the extent of any duties that are, or should be, payable under the Dumping Duty Act because of that notice; and
(d) recommends, in particular, whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and
(e) recommends, where applicable, whether the Minister ought to give notice to the exporter under subsection 269TG(3D) or to the government of the country of export or to the exporter under subsection 269TJ(2A).
(2) The Commissioner’s report must, to the extent that it is practicable to do so, also extend to any like goods not covered by the application but imported into Australia during the period starting on the date of initiation of the investigation and ending 20 days after the statement of essential facts in respect of the investigation is placed on the public record.
(3) Subject to subsection (4), in deciding on the recommendations to be made to the Minister in the Commissioner’s report in relation to an application under section 269TB for publication of a dumping duty notice or a countervailing duty notice, the Commissioner:
(a) must have regard to:
(i) the application; and
(ii) any submission concerning the publication of that notice to which the Commissioner has had regard for the purpose of formulating the statement of essential facts; and
(iii) the statement of essential facts; and
(iv) any submission made in response to that statement that is received by the Commissioner within 20 days after the placing of that statement on the public record; and
(b) may have regard to any other matters that the Commissioner considers to be relevant.
(4) The Commissioner is not obliged to have regard to any submission made in response to the statement of essential facts that is received by the Commissioner after the end of the period referred to in subparagraph (3)(a)(iv) if to do so would, in the Commissioner’s opinion, prevent the timely preparation of the report to the Minister.
(5) The report to the Minister must include a statement of the Commissioner’s reasons for any recommendation contained in the report that:
(a) sets out the material findings of fact on which that recommendation is based; and
(b) provides particulars of the evidence relied on to support those findings.
269TEB Commissioner recommendations concerning undertakings offered after preliminary affirmative determination
(1) A person who:
(a) if application has been made for publication of a dumping duty notice in respect of goods—is an exporter of such goods; or
(b) if application has been made for publication of a countervailing duty notice in respect of goods—is the government of the country of export, or is an exporter, of such goods;
may, at any time after the making of a preliminary affirmative determination in respect of the application, indicate in writing to the Commissioner the terms in which the government or exporter would be prepared to give an undertaking to the Minister.
(2) The Commissioner must consider whether he or she is satisfied that those terms are adequate to remove the injury, or the threat of injury, to which the application is addressed so far as the government or exporter offering the undertaking is concerned and, by notice in writing:
(a) if the Commissioner is so satisfied—recommend to the Minister that he or she accept the undertaking; or
(b) if the Commissioner is not so satisfied—indicate to the government or exporter the reasons why he or she is not so satisfied.
(3) A government or an exporter may, having regard to those reasons, indicate to the Commissioner that the government or exporter is prepared to give an undertaking to the Minister in revised terms.
(4) If an undertaking in revised terms is proposed to the Commissioner, the Commissioner must:
(a) if he or she is not satisfied that the undertaking as so revised is adequate to remove the injury, or the threat of injury, to which the application is addressed—inform the government or exporter to that effect; and
(b) if he or she is so satisfied—recommend to the Minister that the Minister accept the undertaking as revised.
(5) If the Minister accepts the undertaking proposed by a government, investigation of the application is suspended so far as it relates to goods exported from that country.
(6) If the Minister accepts the undertaking proposed by an exporter, investigation of the application is suspended so far as it relates to goods exported by that exporter.
(7) If:
(a) investigation of an application is suspended:
(i) so far as it relates to goods exported from a particular country; or
(ii) so far as it relates to goods exported by a particular exporter;
on the Minister’s acceptance of an undertaking proposed by the government of that country or by that exporter; and
(b) that government or exporter breaches that undertaking;
the Minister may take such steps as he or she considers necessary to facilitate the resumption of the investigation in so far as it relates to goods exported from that country or by that exporter.
(8) Without limiting the generality of subsection (7), the Minister may, in writing, require the Commissioner to resume the investigation so far as it relates to goods exported from the country, or by the exporter, who breached the undertaking subject to such conditions as to the conduct of the investigation as the Minister considers appropriate.
(9) In determining the steps to be taken in order to facilitate the resumption of an investigation, and, where the Minister requires that the Commissioner resume the investigation, to determine the conditions on which the resumed investigation is to be conducted, the Minister must have regard to:
(a) the procedures that had been completed when the undertaking was accepted; and
(b) the length of time that has elapsed since the acceptance of the undertaking.
(10) The Commissioner is not obliged to consider the terms of any proposed undertaking provided by a government or an exporter if to do so would prevent the timely making of a recommendation by the Commissioner to the Minister under section 269TEA.
(11) If the Commissioner does not recommend the acceptance of an undertaking under this section, the Commissioner may nonetheless recommend to the Minister that he or she seek an undertaking from the government or exporter who proposed the undertaking and set out the terms of the undertaking that he or she recommends the Minister seek.
Division 3—Consideration of anti‑dumping matters by the Minister
269TF What this Division is about
This Division sets out the role of the Minister in considering an anti‑dumping matter. The Minister will normally be acting after receipt of a report from the Commissioner. In particular, the Division:
• empowers the Minister to publish dumping duty notices or countervailing duty notices;
• empowers the Minister to accept undertakings rather than publish such notices;
• outlines the matters of which the Minister must be satisfied before publishing such notices or accepting such undertakings;
• indicates the period during which such notices or undertakings remain in force;
• sets out the circumstances in which such notices can extend to goods already exported.
269TG Dumping duties
(1) Subject to section 269TN, where the Minister is satisfied, as to any goods that have been exported to Australia, that:
(a) the amount of the export price of the goods is less than the amount of the normal value of those 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 8 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 8 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.
(2) Where the Minister is satisfied, as to goods of any kind, that:
(a) the amount of the export price of like goods that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods that may be exported to Australia in the future may be less than the normal value of the goods; and
(b) because of that, 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;
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 8 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.
(3) Where:
(a) a notice under subsection (1) declares particular goods to be goods to which section 8 of the Dumping Duty Act applies; or
(b) a notice under subsection (2) declares like goods in relation to goods of a particular kind to be goods to which that section applies;
the notice must, subject to subsection (3A), include a statement of the respective amounts that the Minister ascertained, at the time of publication of the notice:
(c) was or would be the normal value of the goods to which the declaration relates; and
(d) was or would be the export price of those goods; and
(e) was or would be the non‑injurious price of those goods.
(3A) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non‑injurious price of 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 that value or price would adversely affect the person’s business or commercial interests:
(a) in accordance with subsection 269ZI(9) the Minister is not required to include in the notice a statement of that value or price; but
(b) upon request the Commissioner may notify that value or 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.
(3D) If the export of a consignment of goods to Australia by an exporter has been under consideration by the Minister so as to decide whether or not to publish a dumping 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 exporter stating that:
(a) the Minister is of the opinion that it would be appropriate for the exporter to give an undertaking in accordance with subsection (4) to the Minister; and
(b) an undertaking, in the terms set out in the notice, would be satisfactory to the Minister.
(4) Whether or not a notice has been given to an exporter, the Minister may defer the decision to publish or not to publish a dumping duty notice covering that exporter, for so long as the Minister considers appropriate, if the exporter offers, and the Minister accepts, an undertaking that the exporter will so conduct future trade to Australia in like goods as to avoid:
(a) causing or threatening material injury to an Australian industry producing like goods; or
(b) materially hindering the establishment of such an Australian industry.
(5) 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 to which the undertaking relates is limited to an amount such that the total price of the goods is not more than the non‑injurious price of the goods.
(5A) However, subsection (5) 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 normal value of the goods was not ascertained under subsection 269TAC(1) because of the operation of subparagraph 269TAC(2)(a)(ii);
(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.
(6) The Minister:
(a) may give a notice to an exporter under subsection (3D) whether or not the giving of such a notice has been recommended by the Commissioner in a report 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 give a notice to an exporter under subsection (3D), or accept an undertaking from an exporter, before a preliminary affirmative determination, or an equivalent determination in an investigation conducted under section 269TAG, has been made that extends to that exporter; and
(d) must give public notice of any undertaking so accepted.
(7) The acceptance by the Minister of an undertaking may be subject to conditions that include, but are not limited to, conditions relating to:
(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.
(8) 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 dumping duty notice or would have decided not to publish such a notice.
(9) 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 dumping duty notice or would have decided not to publish such a notice if the undertaking had not been accepted.
(10) Subsection (9) does not imply that the Minister is required to make a determination under that subsection before the Minister has received a report of the Commissioner in relation to the matter.
(11) If the Minister determines under subsection (9) that he or she would have decided not to publish a dumping duty notice, the undertaking automatically lapses.
269TH Third country dumping duties
(1) Subject to section 269TN, where the Minister is satisfied, as to any goods produced or manufactured in a particular country that have been exported to Australia, that:
(a) the amount of the export price of the goods is less than the amount of the normal value of the goods; and
(b) because of that:
(i) material injury to an industry in a third country engaged in the production or manufacture of like goods has been or is being caused or is threatened; 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 9 of the Dumping Duty Act—material injury to an industry in a third country engaged in the production or manufacture of like goods would or might have been caused if the security had not been taken;
the Minister, if requested by the Government of the third country to do so, may, by public notice, declare that section 9 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.
(2) Where the Minister is satisfied, as to goods of any kind produced or manufactured in a particular country that:
(a) the amount of the export price of like goods so produced or manufactured that have already been exported to Australia is less than the amount of the normal value of those goods, and the amount of the export price of like goods so produced or manufactured that may be exported to Australia in the future may be less than the normal value of the goods; and
(b) because of that, material injury to an industry in a third country engaged in the production or manufacture of like goods has been or is being caused or is threatened;
the Minister, if requested by the Government of the third country so to do, 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 so manufactured or produced that have been exported to Australia), declare that section 9 of the Dumping Duty Act applies to like goods so produced or manufactured that are exported to Australia after the date of publication of the notice or such later date as is specified in the notice.
(3) Where:
(a) a notice under subsection (1) declares particular goods to be goods to which section 9 of the Dumping Duty Act applies; or
(b) a notice under subsection (2) declares like goods in relation to goods of a particular kind to be goods to which that section applies;
the notice must, subject to subsection (4), include a statement of the respective amounts that the Minister ascertained at the time of publication of the notice:
(c) was or would be the normal value of the goods to which the declaration relates; and
(d) was or would be the export price of those goods; and
(e) was or would be the non‑injurious price of those goods.
(4) If any person who has provided information to assist the Minister to ascertain the normal value, export price or non‑injurious price of 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 that value or price would adversely affect the person’s business or commercial interests:
(a) in accordance with subsection 269ZI(9), the Minister is not required to include in the notice a statement of that value or price; but
(b) upon request the Commissioner may notify that value or 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.
269TJ Countervailing duties
(1) 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.
(2) Where the Minister is satisfied, as to goods of any kind that:
(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.
(2A) 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.
(3) 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.
(3A) This subsection 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 Austra