Federal Register of Legislation - Australian Government

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Determinations/Other as made
This determination sets out the kinds of enterprises which fall within the definition of small-medium enterprise in subsection 269T(1) of the Customs Act 1901.
Administered by: Industry, Science and Resources
Registered 20 Dec 2013
Tabling HistoryDate
Tabled HR11-Feb-2014
Tabled Senate11-Feb-2014

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Industry

 

Subject: -              Customs Act 1901

                            Customs (Definition of “small-medium enterprise”) Determination 2013

 

Authority

 

Subsection 269T(1B) of the Customs Act 1901 provides that the Minister may, by legislative instrument,  prescribe kinds of enterprises for the purposes of the definition of small-medium enterprise in subsection (1).

 

Purpose and operation

 

This instrument sets out the kinds of enterprises which fall within the definition of small-medium enterprise in subsection 269T(1) of the Customs Act 1901.

 

Background

 

The purpose of the Determination is to allow the Minister to define “small-medium enterprise” for the purposes of determining if the Minister is not required to have regard to the lesser duty rule.

 

Sections 8(5B), 8(5BA), 9(5AA), 10(3C), 10(3D), 11(5)  of the Customs Tariff (Anti-Dumping)  Act 1975 require the Minister to consider the desirability of fixing a lesser amount of duty than the dumping (or subsidy) margin where the imposition of that lesser amount is adequate to remove injury. This is referred to as the “lesser duty rule”.

 

The Minister is not required to have regard to the lesser duty rule where the Minister is satisfied that certain circumstances exist as prescribed in subsections 8(5BAA), 8(5BAAA), 9(5AAA), 10(3CA), 10(3DA), 11(5A) of the Customs Tariff (Anti-Dumping) Act 1975 and subsection 269TG(5A), 269TJ(3BA) of the Customs Act 1901.  The removal of the requirement for the mandatory consideration of the lesser duty rule in particular circumstances was introduced by the Customs Amendment (Anti-dumping Measures) Act 2013 and the Customs Tariff (Anti‑Dumping) Amendment Act 2013.

 

The finding of these circumstances does not prevent the Minister from considering and applying the lesser duty rule where those specified circumstances exist and where the Minister considers it would be appropriate to do so.

 

One of the prescribed circumstances in which the Minister is not required to have regard to the lesser duty rule is where the Australian industry in respect of like goods consists of at least two small-medium enterprises.  Subsection 269T(1B) of the Customs Act 1901 allows the Minister to make a legislative instrument for the purposes of defining “small-medium enterprise”.  This Determination defines “small-medium enterprise” and provides clarity to parties engaged in Australia’s anti-dumping system.

 

This Determination will allow the Minister to not have regard to the lesser duty rule where two or more members of the Australian industry producing like goods identify themselves as “small-medium enterprises”. 

 

The definition, as provided by the Determination, is intended to exclude producers or manufacturers that are related to, or that are not at arms‑length from, other producers or manufacturers within the same industry.  For example where two entities are subsidiaries of the same enterprise, those two entities would be excluded from the definition of a “small-medium enterprise”.  Further, an enterprise would not fall within the definition where it is a division of (ie not independent from) another enterprise.

 

Commencement

 

This instrument commences on commencement of the Customs Amendment (Anti-dumping Measures) Act 2013.

 

 

Consultation

 

The Commonwealth undertook targeted consultation on the implementation of the reforms that are given effect by the Customs Amendment (Anti-dumping Measures) Act 2013 and the Customs Tariff (Anti-Dumping) Amendment Act 2013.  On 25 March 2013 the International Trade Remedies Forum, whose members consist of anti‑dumping stakeholders, was consulted on the implementation of the reforms included in the Customs Amendment (Anti-dumping Measures) Act 2013.  Following this, on 24 May 2013 members of the International Trade Remedies Forum were provided with an exposure draft of the Customs Amendment (Anti-dumping Measures) Act 2013 and the Customs Tariff (Anti‑Dumping) Amendment Act 2013.

 

The International Trade Remedies Forum brings together representatives from Australian manufacturers and producers, importers, downstream industry, industry associations, unions, and relevant Government agencies.  The International Trade Remedies Forum provides high-level strategic advice and feedback to the Government on the implementation and monitoring of reforms to Australia’s anti‑dumping system. 


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Customs (Definition of “small-medium enterprise”) Determination 2013

This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 Overview

The Instrument defines the term, ‘small-medium enterprise’ for the purposes of the subsection 269T(1) of the Customs Act 1901. This definition is used to determine the circumstances in which the Minister is not required to have regard to the desirability of fixing a lesser amount of duty under the Customs Act 1901.

Human rights implication

This Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

The Instrument is compatible with human rights as it does not raise any human rights issues.

 

The Minister for Industry, the Honourable Ian Macfarlane MP